Hazardous Waste Identification Rule (HWIR): Revisions to the Mixture and Derived-From Rules

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: May 16, 2001 (Volume 66, Number 95)]
[Rules and Regulations]
[Page 27266-27297]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16my01-23]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 261 and 268
[FRL-6975-2]
RIN 2050-AE07

Hazardous Waste Identification Rule (HWIR): Revisions to the
Mixture and Derived-From Rules

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Today's action finalizes the retention of the mixture rule and
the derived-from rule in the Resource Conservation and Recovery Act
(RCRA), with two revisions. The mixture and derived-from rules ensure
that hazardous wastes that are mixed with other wastes or that result
from the treatment, storage or disposal of hazardous wastes do not
escape regulation and thereby cause harm to human health and the
environment.
EPA is finalizing two revisions to the mixture and derived-from
rules. These revisions would narrow the scope of the mixture and
derived-from rules, tailoring the rules to more specifically match the
risks posed by particular wastes. The first revision is an expanded
exclusion for mixtures and/or derivatives of wastes listed solely for
the ignitability, corrosivity, and/or reactivity characteristics. The
second revision is a new conditional exemption from the mixture and
derived-from rules for ``mixed wastes'' (that is, wastes that are both
hazardous and radioactive).

DATES: These final regulations are effective on August 14, 2001.

ADDRESSES: Supporting materials are available for viewing in the RCRA
Information Center (RIC), located at Crystal Gateway I, First Floor,
1235 Jefferson Davis Highway, Arlington, VA. The Docket Identification
Number is F-2001-WHWF-FFFFF. The RIC is open from 9 a.m. to 4 p.m.,
Monday through Friday, excluding federal holidays. To review docket
materials, it is recommended that the public make an appointment by
calling 703 603-9230. The public may copy a maximum of 100 pages from
any regulatory docket at no charge. Additional copies cost $0.15/page.
The index and some supporting materials are available electronically.
See the ``Supplementary Information'' section for information on
accessing them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In
the Washington, DC, metropolitan area, call 703 412-9810 or TDD 703
412-3323.
For more detailed information on specific aspects of this
rulemaking, contact Tracy Atagi, Office of Solid Waste 5304W, U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460-0002, 703-308-8672, atagi.tracy@epa.gov.

SUPPLEMENTARY INFORMATION: The index and many of the supporting
materials are available on the Internet. You can find these materials
at http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/index.htm>.

Affected Entities

Entities potentially affected by this action are generators of
industrial hazardous waste, and entities that treat, store, transport
and/or dispose of these wastes. This table is not intended to be
exhaustive, but rather provides a guide for readers regarding entities
likely to be affected by this action.

------------------------------------------------------------------------
List of
potentially
SIC code NAICS code affected US
Industrial
Entities
------------------------------------------------------------------------
Revision to 40 CFR 261.3 Definition of hazardous waste
------------------------------------------------------------------------
2800............................ 32xxxx............ Chemicals & allied
products
manufacturing.
2819............................ Five possible Industrial
codes. inorganic
chemicals
manufacturing.
2821............................ 325211............ Plastics materials
& resins
manufacturing.
2833............................ 325411............ Medicinal
chemicals &
botanicals
manufacturing.
2834............................ 325412............ Pharmaceutical
preparations
manufacturing.
2851............................ 32551............. Paints & allied
manufacturing.
2869............................ Five possible Industrial organic
codes. chemicals
manufacturing.
2879............................ 32532............. Pesticides &
agricultural
chemicals
manufacturing.
3089............................ Four possible Plastics products
codes. manufacturing.
3241............................ 32731............. Hydraulic cement
products
manufacturing.
3479............................ Four possible Fabricated metal
codes. coating & allied
services
3711............................ Five possible Motor vehicle &
codes. passenger car
bodies
manufacturing.
4212............................ 562111 & 562112... Local trucking
services
(industrial waste
shipment).
4953............................ Five possible Refuse (industrial
codes. waste) treatment/
disposal
services.

[[Page 27267]]

7389............................ 36 possible codes. Business services.
7532............................ 811121............ Auto repair & auto
paint shops.
9511............................ 92411............. Waste management.
9711............................ 811121............ National security
(military bases).

------------------------------------------------------------------------
Explanatory Notes:
(1) SIC= 1987 Standard Industrial Classification system (US Department
of Commerce's traditional code system last updated in 1987).
(2) NAICS= 1997 North American Industrial Classification System (US
Department of Commerce's new code system as of 1997).
(3) Refer to the Internet website http://www.census.gov/epcd/www/
naicsdev.htm for additional information and a cross-walk table for the
SIC and NAICS codes systems.

This table lists those entities that EPA believes could be affected
by this action, based on industrial sectors identified in the economic
analysis in support of this final rule. A total of about 120 entities
are expected to benefit from the proposed revisions to 40 CFR 261.3 in
the 17 industrial sectors listed above, but primarily in the chemicals
and allied products sector (i.e., SIC code 28, or NAICS code 325).
Other entities not listed in the table also could be affected. To
determine whether your facility is regulated by this action, you should
examine 40 CFR parts 260, 261 and 268 carefully in concert with the
amended rules found at the end of this Federal Register document. If
you have questions regarding the applicability of this action to a
particular entity, consult the persons listed in the preceding FOR
FURTHER INFORMATION CONTACT section.

Acronyms
------------------------------------------------------------------------
Acronym Definition
------------------------------------------------------------------------
3MRA................................... Multimedia, Multipathway and
Multireceptor Risk Assessment
APA.................................... Administrative Procedures Act
BDAT................................... Best Demonstrated Available
Technology
CERCLA................................. Comprehensive Environmental
Response, Compensation and
Liability Act
CFR.................................... Code of Federal Regulations
CMA.................................... Chemical Manufacturers
Association
CWA.................................... Clean Water Act
DOT.................................... Department of Transportation
EPA.................................... Environmental Protection Agency
HSWA................................... Hazardous and Solid Waste
Amendments of 1984
HWIR................................... Hazardous Waste Identification
Rule
ICR.................................... Information Collection Request
IRIS................................... Integrated Risk Information
System
LDR.................................... Land Disposal Restriction
LLMW................................... Low Level Mixed Wastes
LLRWDF................................. Low Level Radioactive Waste
Disposal Facility
MACT................................... Maximum Achievable Control
Technology
NPDES.................................. National Pollution Discharge
Elimination System
NRC.................................... Nuclear Regulatory Commission
(NRC)
NTTAA.................................. National Technology Transfer
and Advancement Act
OMB.................................... Office of Management and Budget
ORD.................................... Office of Research and
Development
OIRM................................... Office of Information and
Resources Management
OSW.................................... Office of Solid Waste
OSWER.................................. Office of Solid Waste and
Emergency Response
PBMS................................... Performance Based Measurement
System
QA/QC.................................. Quality Assurance / Quality
Control
RCRA................................... Resource Conservation Recovery
Act
RFA.................................... Regulatory Flexibility Act
RfD.................................... Reference Dose
RfC.................................... Reference Concentration
RIC.................................... RCRA Docket Information Center
SBREFA................................. Small Business Regulatory
Enforcement Fairness Act
TC..................................... Toxicity Characteristic
TCLP................................... Toxicity Characteristic
Leaching Procedure
TDD.................................... Telecommunications Device for
the Deaf
TSDF................................... Treatment, Storage, and
Disposal Facility
UMRA................................... Unfunded Mandates Reform Act
UTS.................................... Universal Treatment Standards
------------------------------------------------------------------------

Outline

Background

I. What law authorizes these rules?
II. Which hazardous waste identification rules is EPA finalizing
today?
III. What is the legal history of these rules?
IV. How do the final rules compare to those proposed on November 19,
1999?
V. When will the final rules become effective?
VI. What other changes to the hazardous waste identification rules
is EPA continuing to pursue?

[[Page 27268]]

Major Comments

VII. What were the major comments on retaining the mixture and
derived-from rules, and how has EPA responded to them?
A. Need for the mixture and derived-from rules
B. Legality of the mixture and derived-from rules
C. Regulatory cost of the mixture and derived-from rules
VIII. What were the major comments on the revision to 40 CFR 261.3
to exclude wastes listed solely for ignitability, corrosivity, and/
or reactivity, and how has EPA responded to them?
A. Eligibility of waste listed for the toxicity characteristic
B. Toxicity of wastes listed for ignitability, corrosivity, and/
or reactivity
C. Eligibility of F003 solvents for this exclusion
D. Applicability of Land Disposal Restrictions (LDRs) to
excluded wastes
E. Applicability of contained-in policy to excluded wastes
IX. What were the major comments on the revision to 40 CFR 261.3 for
mixed wastes, and how has EPA responded to them?
X. What were the major comments on the proposals submitted by the
Chemical Manufacturers Association (CMA), and how has EPA responded
to them?
A. Expanding the current headworks exclusion
B. Excluding hazardous waste leachate
C. Excluding hazardous waste aggressive biological treatment
residues
D. Excluding hazardous waste combustion residues
E. Expanding the current de minimis exclusion

State Authorization

XI. How will today's regulatory changes be administered and enforced
in the States?

Administrative Requirements

XII. How has EPA fulfilled the administrative requirements for this
rulemaking?
A. Executive Order 12866: Determination of Significance
B. Regulatory Flexibility Act
C. Paperwork Reduction Act (Information Collection Request)
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. National Technology Transfer and Advancement Act of 1995
I. Executive Order 12898: Environmental Justice
J. Congressional Review Act

Technical Correction

XIII. What technical correction is EPA making in today's rulemaking?

Background

I. What Law Authorizes These Rules?

These rules are promulgated under the authority of Sections
2002(a), 3001, 3002, 3004, and 3006 of the Solid Waste Disposal Act of
1970, as amended by the Resource Conservation and Recovery Act of 1976
(RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984
(HSWA), 42 U.S.C. 6912(a), 6921, 6922, 6924, 6926.

II. Which Hazardous Waste Identification Rules Is EPA Finalizing
Today?

Today, EPA is finalizing retention and revision of the mixture and
derived-from rules, previously set forth in 40 CFR 261.3(a)(2)(iii),
261.3(a)(2)(iv) and 261.3(c)(2)(i), and proposed at 64 FR 63382
(November 19, 1999). The mixture and derived-from rules are a part of
the RCRA rules that define which wastes are considered to be hazardous
and therefore subject to RCRA Subtitle C rules. The mixture and
derived-from rules identify as hazardous those wastes that originate
from RCRA hazardous waste listed under 40 CFR part 261 (referred to as
``listed hazardous wastes''). Under the mixture rule, a mixture of a
solid waste with one or more listed hazardous wastes is a hazardous
waste. Under the derived-from rule, any solid waste generated from the
treatment, storage, or disposal of a listed hazardous waste remains
regulated as a hazardous waste. These derived-from wastes include
wastes such as sludges, spill residues, ash, emission control dust, and
leachate generated from listed hazardous wastes.
The mixture and derived-from rules that are being finalized today
include two revisions to these rules. For the first revision, we have
narrowed the applicability of the derived-from rules by excluding
derivatives of wastes listed solely for the characteristics of
ignitability, reactivity, and/or corrosivity when they no longer
exhibit any characteristic of hazardous waste. Mixtures of wastes
listed solely for the characteristic of ignitability, reactivity, and/
or corrosivity which no longer exhibit any characteristic of hazardous
waste continue to be excluded under today's rules. In summary, under
today's final rules, all wastes listed solely for an ignitability,
reactivity and/or corrosivity characteristic (including mixtures,
derived-from and as generated wastes) are excluded once they no longer
exhibit a characteristic.
For the second revision, we are also finalizing a conditional
exemption for certain low-level mixed waste (i.e., waste that is both
radioactive and hazardous) from the mixture and derived-from rules,
provided the mixed waste is handled in accordance with 40 CFR part 266,
Subpart N. This Subpart, which is being published as a final rule
elsewhere in today's Federal Register, explains the eligibility
requirements for this exemption, and includes several conditions and
requirements for the exempted waste.

III. What Is the Legal History of These Rules?

EPA promulgated the mixture and derived-from rules in 1980 as part
of the comprehensive ``cradle to grave'' requirements for managing
hazardous waste. 45 FR 33066 (May 19, 1980). Numerous industries that
generate hazardous wastes challenged the 1980 mixture and derived-from
rules. In December 1991, the D.C. Circuit Court of Appeals vacated the
rules because they had been promulgated without adequate notice and
opportunity to comment. Shell Oil Co. v. EPA, 950 F. 2d 741 (D.C. Cir.
1991). The court, however, suggested that EPA might want to consider
reinstating the rules pending full notice and comment in order to
ensure continued protection of human health and the environment.
In response to this decision, we promulgated an emergency rule
reinstating the mixture and derived-from rules as interim final rules
without providing notice and opportunity to comment. 57 FR 7628 (March
3, 1992). We also promulgated a ``sunset provision'' which provided
that the mixture and derived-from rules would remain in effect only
until April 28, 1993. Shortly after, we published a proposal containing
several options for revising the mixture and derived-from rules. See 57
FR 21450 (May 20, 1992). The May 1992 proposal and the time pressure
created by the ``sunset provision'' generated significant controversy.
In response, Congress included in EPA's fiscal year (FY) 1993
appropriation several provisions addressing the mixture and derived-
from rules. Public Law No. 102-389, 106 Stat. 1571. First, Congress
nullified the sunset provision by providing that EPA could not
promulgate any revisions to the rules before October 1, 1993, and by
providing that the reinstated regulations could not be ``terminated or
withdrawn'' until revisions took effect. However, to ensure that we
could not postpone the issue of revisions indefinitely, Congress also
established a deadline of October 1, 1994 for the promulgation of
revisions to the mixture and derived-from rules. Congress made this
deadline enforceable under RCRA's citizen suit provision, section 7002.

[[Page 27269]]

On October 30, 1992, we published two notices, one removing the
sunset provision, and the other withdrawing the May 1992 proposal. (See
57 FR 49278, 49280). We had received many comments criticizing the May
1992 proposal. The criticisms were due, in a large part, to the very
short schedule imposed on the regulation development process itself.
Commenters also feared that the proposal would result in a
``patchwork'' of differing State programs because some states might not
adopt the revisions. This fear was based on the belief that States
would react in a negative manner to the proposal and refuse to
incorporate it into their programs if finalized. Finally, many
commenters also argued that the risk assessment used to support the
proposed exemption levels failed to provide adequate protection of
human health and the environment because it evaluated only the risks of
human consumption of contaminated groundwater and ignored other
pathways that could pose greater risks. Based on these concerns, and
based on EPA's desire to work through the individual elements of the
proposal more carefully, we withdrew the proposal.
Subsequently, a group of waste generating industries challenged the
March 1992 action that reinstated the mixture and derived-from rules
without change. Mobil Oil Corp. v. EPA, 35 F.3d 579 (D.C. Cir. 1994).
The court rejected this challenge, holding that the fiscal year (FY)
1993 appropriations act made the challenge moot because it prevented
both us and the courts from terminating or withdrawing the interim
rules before we revised them, even if we failed to meet the statutory
deadline for the revisions.
We did not meet Congress' October 1, 1994 deadline for revising the
mixture and derived-from rules. In early October 1994, several groups
of waste generating and waste managing industries filed citizen suits
to enforce the October 1 deadline for revising the mixture and derived-
from rules. Two of the cases were consolidated and a third was
dismissed with the plaintiffs being added as intervenor to the
consolidated cases. Environmental Technology Council v. Browner, C.A.
No. 94-2119, 94-2436 (TFH) (D.D.C.). The U.S. District Court for the
District of Columbia entered a consent decree resolving the
consolidated cases. The consent decree, as subsequently amended,
required the Administrator to sign a proposal to revise the mixture and
derived-from rules by November 13, 1995 and a notice of final action on
the proposal by February 13, 1997, and it also specified that the
deadlines in the 1992 appropriations act do not apply to any rule
revising the separate regulations that establish jurisdiction over
media contaminated with hazardous wastes. On November 13, 1995, the
Administrator signed the proposed Hazardous Waste Identification Rule
to revise the mixture and derived-from rules, which was published in
the Federal Register on December 21, 1995. (60 FR 66344). It proposed a
set of exemption levels for hundreds of hazardous constituents, many of
which were based on a complex multipathway risk assessment. The notice
also proposed to revise the derived-from rule to exclude wastes listed
because they exhibited the characteristics of ignitability, corrosivity
and/or reactivity from the definition of hazardous waste, and solicited
comment on the concept of providing a separate exemption for hazardous
wastes mixed with low level radioactive wastes.
We received extensive comments, many critical, on the 1995
proposal, particularly with respect to the scientific risk assessment
supporting the proposed concentration-based exemption from the mixture
and derived-from rules. As a result of the comments, we concluded that
considerable work needed to be done to resolve the complex scientific
and technical issues raised. On April 11, 1997, the District Court
entered an order amending the consent decree in Environmental
Technology Council v. Browner. The amended decree provided us with
additional time to perform further scientific risk assessment work and
required us to ask for comment on specific issues. On November 19,
1999, we published a proposal requesting comment on revisions to the
mixture and derived-from rules, and discussed and requested comment on
the issues specified in the consent decree. Today's final rulemaking
completes our legal obligation regarding revisions to the mixture and
derived-from rules.

IV. How Do the Final Rules Compare to Those Proposed on November
19, 1999?

As we proposed, we are retaining both the mixture and derived-from
rules, and the revisions to those rules that we are finalizing today
are for the most part the same as those we proposed in November 1999.
Our rationale and basis for today's final rulemaking is set forth in
Sections VII, VIII, and IX of this preamble.
The first revision amends the regulations under 40 CFR 261.3 for
wastes listed in 40 CFR part 261, subpart D solely because they exhibit
a characteristic of hazardous waste. Under current regulations, such
listed wastes as generated or treated are considered hazardous under
RCRA Subtitle C, even when the waste does not exhibit a characteristic,
unless they are delisted. However, mixtures are considered non-
hazardous if the waste no longer exhibits any characteristic.
In the November 19, 1999 notice, we proposed to amend the scope of
and expand the applicability of the current exclusion. The notice
proposed a clarifying change to the scope of the exclusion to include
those wastes listed in part 261, subpart D only for a characteristic of
ignitability corrosivity, or reactivity. The notice also proposed to
expand the applicability of the exclusion so all these materials would
be excluded from hazardous waste regulation if they are decharacterized
and meet the appropriate treatment standards. The notice stated that
most of the currently regulated waste eligible for this exclusion is
listed as F003, but would also include certain K-, P- and U-listed
wastes (See 64 FR 63390-63391, November 19, 1999).
The exclusion applies when a generator determines that the waste,
whether as generated or after treatment, does not exhibit any
characteristic. This exclusion is self implementing, with no additional
recordkeeping and reporting requirements.\1\ EPA is finalizing this
exclusion as it was proposed. With respect to the applicability of land
disposal restrictions (LDR) in Part 268, EPA is clarifying that when a
waste has been listed solely because it exhibits a characteristic of
ignitability, corrosivity, and/or reactivity AND that waste does not
exhibit any hazardous waste characteristic at the point of generation,
then that waste is not subject to the LDR requirements. Wastes that are
characteristic at the point of generation and then are subsequently
decharacterized are still subject to LDR requirements. For information
on the major public comments and EPA's responses and rationale for this
exclusion, please see Section VIII of this preamble. For discussion of
the LDR issue in particular, please see Section VIII.D.
---------------------------------------------------------------------------

\1\ However, under 40 CFR 268.7(a)(7)(a) generator must still
put a one-time notification in the facility files describing the
waste generation, regulatory exclusion, and disposition of the
waste(s). According to 40 CFR 268.7(a)(8), this notification must be
kept for at least three years.
---------------------------------------------------------------------------

The second revision to the mixture and derived-from rules involves
mixed waste (i.e., wastes that are both hazardous and radioactive).
Under this revision, mixed waste is conditionally exempt from the
mixture and derived-from rules, provided the mixed waste is

[[Page 27270]]

handled in accordance with 40 CFR part 266, Subpart N.
The regulatory language in 40 CFR part 266, Subpart N, which we are
promulgating in a separate final rule published elsewhere today,
conditionally exempts hazardous waste mixed with low-level radioactive
wastes (low-level mixed wastes/LLMW) from the storage, treatment in
tank, transportation, and disposal requirements of RCRA. In addition,
hazardous waste mixed with Naturally Occurring and/or Accelerator-
produced Radioactive Material (NARM mixed waste) can be exempted from
transportation and disposal requirements. The Nuclear Regulatory
Commission (NRC) or its Agreement State licensed LLMW generators can
store, or treat LLMW in storage tanks without RCRA Subtitle C permits
if all exemption conditions are met. Treated LLMW or NARM mixed waste
could be disposed at a low level radioactive waste disposal facility
(LLRWDF) regulated by the NRC or its Agreement State if all exemption
conditions are met. The rationale for conditionally exempting LLMW from
the mixture and derived-from rules is the same as that for creating the
conditional exemption from the RCRA regulatory definition of hazardous
waste for LLMW.
We are largely finalizing the mixed waste exemption from the
mixture and derived-from rules as proposed. However, to address public
comments on the need for more clarity of this exemption, we have
revised the regulatory language and have moved it to its own subsection
(40 CFR 261.3(h)). As used in section 261.3(h), the term ``eligible
radioactive mixed waste'' refers to hazardous waste containing
radioactive waste that meets the eligibility criteria and conditions of
part 266, subpart N. In addition, we have made some changes to the new
Subpart N from what we proposed. Those changes are explained in the
mixed waste final rule, published elsewhere in the Federal Register
today. For information on the public comment regarding the exemption,
and EPA's responses please see Section IX of this preamble.

V. When Will the Final Rules Become Effective?

Today's rules become effective August 14, 2001. Pursuant to section
3010(b)(1) of RCRA, the Administrator finds that the regulated
community does not need six months to come into compliance with today's
rulemaking, because today's action retains rules already in effect, and
expands an exclusion that reduces regulatory burden.

VI. What Other Changes to the Hazardous Waste Identification Rules
Is EPA Continuing To Pursue?

EPA continues to pursue an exemption from hazardous waste
management that we discussed in the November 19, 1999 HWIR Federal
Register notice (64 FR 63382). That exemption, also known as the
Hazardous Waste Identification Rule (HWIR) exemption, would exempt
listed hazardous wastes that meet chemical-specific exemption levels
\2\ from the definition of hazardous waste. The HWIR exemption would
help address concerns that the mixture and derived-from rules result in
over-regulation, since listed hazardous waste remains under Subtitle C
jurisdiction regardless of constituent concentration or presence in the
waste, either before or after treatment. This concern was exacerbated
with the passage of HSWA in 1984. HSWA set Land Disposal Restrictions
(LDR) requiring best demonstrated available technology (BDAT) treatment
for all listed hazardous wastes prior to disposal. In cases where a
specific listed wastestream contained relatively innocuous
constituents, or very low concentrations, BDAT treatment requirements
were felt to be overly protective, and unnecessarily expensive. The
Agency believes that an HWIR exemption process would help reduce the
potential over-regulation of low risk hazardous waste while, at the
same time, reducing the time and resource burden on industry and
government. An exemption process would also reduce the burden on the
ongoing delisting program. In the 1995 HWIR proposal, we estimated cost
savings ranging from $75 million to $99 million, based on exemption
levels proposed at that time. Given that the modeling for exemption
levels is undergoing major revision, it is not possible at this time to
estimate the cost savings from a future constituent-based exemption.
---------------------------------------------------------------------------

\2\ An ``exemption level'' in this context is a specific
chemical concentration. If all chemicals in a waste are below their
exemption levels, then the waste would be considered non-hazardous.
---------------------------------------------------------------------------

We plan to develop the HWIR exemption levels based on results from
the Multi-media, Multi-pathway and Multi-receptor risk assessment
(3MRA) Model. The model evaluates simultaneous chemical exposures
across several environmental media and multiple exposure pathways to
human and ecological receptors in order to estimate the health and
ecological effects in the vicinity of waste disposal units that may
receive exempt listed hazardous waste. We presented the underlying
methodology and assumptions for the 3MRA Model in the Federal Register
(64 FR 63382, November 19, 1999). However, because of technical
difficulties arising from the complexity of the modeling effort, we
were unable to propose exemption levels in that notice. Since then, we
have made numerous revisions to correct and improve the model.
On July 18, 2000, EPA made available in a Notice of Data
Availability (NODA) the model results for 36 chemicals, using an
updated version of the model (65 FR 44491). The NODA, and referenced
background information placed in the docket, explained technical
changes made to the model since the November 19, 1999 Federal Register
notice. Finally, the NODA extended the comment period for the November
19, 1999 HWIR exemption discussion until October 16, 2000.
We are currently reviewing the public comments and will decide if
further revisions to the HWIR risk assessment (3MRA) model are
necessary. We also are continuing independent testing and external peer
review of the HWIR risk assessment model.
In addition to the HWIR risk assessment, the November 19, 1999
Federal Register notice discussed options for implementing the HWIR
exemption. We also plan to review the comments relating to
implementation. Before using the revised risk assessment to support a
final rulemaking on the HWIR exemption, we will publish a proposal to
allow public comment on a unified package.
In another effort to better calibrate risk and regulatory
standards, the Agency is also developing two targeted exemptions from
the hazardous waste mixture and derived-from rules: one for certain
solvents destined for wastewater treatment and discharge under the
Clean Water Act, and another for slagged combustion residues from
hazardous waste combustors. Other targeted exemptions are being
assessed for later development (see Section X of this preamble for
further discussion). We also plan to continue on-going efforts to
streamline the existing delisting process.

Major Comments

VII. What Were the Major Comments on Retaining the Mixture and
Derived-From Rules, and How Has EPA Responded to Them?

EPA received several dozen comments on the issue of retaining the
mixture and derived-rules for both the 1995 and 1999 HWIR proposals.
Below is a summary of three major issue areas

[[Page 27271]]

raised in the comments, and EPA's responses. For more detailed comment
responses, please see Hazardous Waste Identification Rule: Revisions to
the Mixture and Derived-From Rules Response to Comments Document.

A. Need for the Mixture and Derived-From Rules

(1)(a) Summary of the Comments on the Need for the Mixture and Derived-
From Rules
EPA received comments from 38 commenters in response to both the
1995 and the 1999 HWIR proposals specifically concerning the necessity
of the mixture and derived-from rules. Of those comments, 14 were
received from industry, seven were from industry associations, eight
were from State Agencies, five were from waste management companies,
two were from waste management associations, one was from a Federal
Agency and one was from a consultant.
The States and waste management associations supported the
retention of the mixture and derived-from rules, while the industry
commenters generally believed that the mixture and derived-from rules
were unnecessary. A summary of the specific issues raised by commenters
is provided below.
Twelve commenters explicitly supported the retention of the mixture
and derived-from rules. Many of the State commenters said that the
rules were necessary to capture mixtures and derivatives of listed
hazardous wastes in the universe of regulated hazardous wastes in order
to protect human health and the environment. The commenters noted that
without these rules, it would be possible to alter a particular waste
to the point that it no longer meets the listing description without
detoxifying, immobilizing, or otherwise actually treating the waste.
One industry association commenter also supported the retention of the
mixture and derived-from rules, noting that although it is not a
perfect solution, the approach has been used for the last 15 years in a
generally effective manner.
One waste management association commenter also strongly supported
the retention of the mixture and derived-from rules. The commenter
believed the mixture and derived-from rules were necessary because they
prevented many wastes that clearly were hazardous and that posed
substantial threats to human health and the environment from escaping
RCRA controls only because they are mixtures or derivatives that no
longer fit an original listing description. The commenter noted that
generators send their listed hazardous wastes to treatment facilities
for initial treatment to reduce the toxicity and/or mobility of some,
but not all, toxic constituents in the waste. The commenter also agreed
that EPA's experience with delisting petitions further supported the
rationale for the mixture and derived-from rules.
Twenty-six commenters did not support the retention of the mixture
and derived-from rules. Some asserted that eliminating the derived-from
rule would be a common sense reform of RCRA to reduce unnecessary over-
regulation of many wastes. Many industry commenters and industry
associations commented that the mixture and derived-from rules
unnecessarily continue to regulate low-risk material resulting in
significant waste management costs with no associated environmental
benefit, thus also affecting the credibility of EPA. Several of the
comments cited EPA's 1992 HWIR proposal, saying that ``millions of tons
of mixtures and derived-from residuals that must be managed as
hazardous waste * * * may actually pose quite low hazards.'' (57 FR
21451, May 20, 1992). The Department of Defense acknowledged the need
to retain the mixture and derived-from rules; however, the commenter
noted that the mixture and derived-from rules have been a source of
over-regulation for low-risk wastes.
Several commenters asserted that the mixture and derived-from rules
have no continued viability, particularly in light of the technological
advances that have developed since the rules were first promulgated in
1980. They noted that since 1980, the regulated community has made
considerable improvements in the treatment, storage, and disposal of
hazardous waste. In their view, the result is that the risks that
formerly may have been associated with the management of hazardous
waste have been reduced significantly or eliminated, such that the
universe of waste that may have warranted Subtitle C regulation in 1980
has been reduced significantly. Six commenters agreed with the U.S.
Court of Appeals observation in Shell Oil Co. v. EPA, 590 F.2d 741, 752
(D.C. Cir. 1991) that, ``the derived-from rule becomes counterintuitive
as applied to processes designed to render wastes nonhazardous. Rather
than presuming that these processes will achieve their goals, the
derived-from rule assumes their failure.'' Commenters also noted that
the hazardous waste characteristics, particularly the Toxicity
Characteristic, would continue to ensure proper management of high risk
wastes under RCRA.
Several commenters stated that when compared to established
standards, a waste material is either hazardous or it is not and it is
not necessary to consider the origin of the material. The consultant
noted that the mixture rule is completely unnecessary and isn't
scientifically appropriate because if the compound or element in the
waste needs to be controlled in a certain environment, it doesn't
matter what the source is. Therefore, a regulation should set the limit
for that environment for that compound or element and the mixture and
derived-from rules should be eliminated. One commenter believed that
the continued inflexible application of the mixture and derived-from
rules has served only to bring to light the self-defeating complexity
of the program.
(1)(b) EPA Response To Comments on the Need for the Mixture and
Derived-From Rules
EPA acknowledges that the mixture and derived-from rules apply
regardless of the concentrations and mobilities of hazardous
constituents in the waste. We have implemented and will continue to
pursue actions to reduce any overregulation of low-risk wastes arising
from the mixture and derived-from rules. Nevertheless, EPA believes
that retention of the mixture and derived-from rules are necessary to
ensure protection of human health and the environment. When EPA
determines that a waste should be listed as hazardous, we consider
several different factors, including the toxicity of the chemicals in
the waste, the persistence of those toxic chemicals, and the degree to
which the chemicals bioaccumulate in the environment. As discussed
below, the act of mixing a hazardous waste with another waste, or
storing, treating, and disposing of that waste does not necessarily
remove the hazard posed by these toxic chemicals. Under RCRA, EPA has
an obligation to ensure that the risk posed by a hazardous waste is
controlled from the cradle to the grave. Both the mixture and derived-
from rules are needed to make sure that this obligation is carried out.

Concerns About Deliberate Evasion

When EPA originally promulgated the mixture and derived-from rules
in 1980, one of our main concerns was that, without these rules,
generators could deliberately evade regulation by taking advantage of a
``loophole'' in the hazardous waste identification process. (45 FR
33084, 33095 (May 19, 1980)). Specifically, we believed that without
the mixture and derived-from rules, generators could potentially alter
their waste so that it no longer meets the

[[Page 27272]]

listing description without detoxifying, immobilizing, or otherwise
effectively treating the waste.
Despite the progress that has been made in environmental compliance
in the past twenty years, this concern remains, and the comments of
EPA's co-regulators, the State governments, echo this continuing
concern. EPA agrees with those industry comments that claim many
companies are more environmentally aware and responsible than they were
in the past. However, there will always be some entities who might try
and exploit gaps in the regulatory system. Absent the mixture and
derived-from rules, there would be a potentially significant gap in the
coverage of the hazardous waste listings.
For example, without a ``mixture'' rule, generators of hazardous
wastes could potentially evade regulatory requirements by mixing listed
hazardous wastes with other hazardous wastes or nonhazardous solid
wastes to create a ``new'' waste that arguably no longer meets the
listing description, but continues to pose a serious hazard. Similarly,
without a ``derived-from'' rule, hazardous waste generators and
hazardous waste treatment, storage, and disposal facilities (TSDFs)
could potentially evade regulation by minimally processing or managing
a hazardous waste and claiming that the resulting residue is no longer
the listed waste, despite the continued hazards that could be posed by
the residue even though it does not exhibit a characteristic. A
hazardous waste regulatory system under which it could be argued that
hazardous waste could leave the system as soon as it was modified to
any degree by being mixed or marginally treated would be ineffective
and unworkable. Such a system could act as a disincentive to adequately
treat, store and dispose of listed hazardous waste.
In addition, as explained below, even if generators or TSDFs do not
deliberately try to evade hazardous waste regulations, certain waste
mixtures and derived-from wastes could pose substantial present or
potential hazards if mismanaged. We, therefore, continue to believe
that the mixture and derived-from rules are necessary to capture wastes
that would pose unacceptable risks to human health and the environment.

Regulating Hazardous Waste Mixtures

Mixing hazardous waste with another waste may dilute, and sometimes
mask, the concentrations of toxic constituents in the listed waste, but
does not necessarily address the hazards posed by these constituents.
Some of the comments focused on diluted wastewaters as an example of
mixtures that are potentially ``low risk.'' Of the ``millions of tons''
of waste that EPA estimated would be exempted under the 1995 HWIR
proposal because they may pose low risks, 99% of the waste by volume is
wastewater (60 FR 66415, December 21, 1995). Wastewaters are generally
disposed either in an underground injection control well regulated
under the Safe Drinking Water Act (SDWA)or to the environment under the
Clean Water Act (CWA). Because discharged hazardous wastewaters must
meet CWA standards, some commenters believe that these wastewater
mixtures should be excluded from hazardous waste regulation prior to
their discharge.
We have several concerns with this argument. The management of
wastewater mixtures is already largely exempt from most RCRA
requirements. The two main requirements that remain under RCRA are that
the wastewaters must be managed in tanks, and the treatment sludge must
be managed as a hazardous waste once removed from the tank. Continued
management of these wastewaters in tanks is usually needed to avoid
infiltration to groundwater of concentrations of toxic constituents
that pose unacceptable risks. Even when they meet their CWA discharge
limits, mismanaged wastes could pose unacceptable risks through the
groundwater pathway, which is not addressed by the CWA. Sludges from
wastewater treatment need to be managed as hazardous waste, because
they can contain the same persistent and toxic chemicals (e.g., heavy
metals) that originated in the wastewaters. Each of these points is
discussed in more detail below.
RCRA section 1004(27) already excludes industrial wastewater
discharges subject to CWA section 402 regulation from the definition of
``solid waste'' under RCRA. See also, 40 CFR 261.4(a)(2). In addition,
wastewater treatment units, as defined in 40 CFR 260.10 (i.e., tanks),
are excluded from almost all RCRA regulation (see 40 CFR 264.1(g)(6);
265.1(c)(10); and 270.1(c)(2)(v)). RCRA has historically deferred to
the Clean Water Act and its oversight in properly regulating hazardous
wastewaters discharged by CWA wastewater treatment systems or other
point sources subject to CWA discharge requirements, including storage
in wastewater treatment units prior to discharge. However, with the
exception of sewage sludge, the CWA does not apply to sludges which are
a byproduct of wastewater treatment. To the extent treatment of listed
hazardous wastewaters generates sludges, those sludges are considered
hazardous by the derived-from rule (as discussed below).
Furthermore, to the extent that additional hazards may be
associated with wastewaters managed in such systems (including risks
via inhalation pathway and risks via groundwater ingestion when
treatment takes place in surface impoundments),\3\ the Agency considers
such wastes as hazardous and within RCRA jurisdiction until discharged.
While wastewaters must meet CWA requirements at the point of discharge,
they can still have high concentrations of constituents during the
management of the waste.
---------------------------------------------------------------------------

\3\ The Revised Air Characteristic Study (EPA 530-R-99-019a)
published August 1999 suggests that potential risks emanating from
wastewaters managed in wastewater treatment tanks may be of
regulatory concern and may represent a regulatory gap because of the
existing exclusions for wastewater treatment units from control
requirements.
---------------------------------------------------------------------------

Even after hazardous wastewaters have been treated to meet CWA
standards, they could still have the potential to pose unacceptable
risks to human health and the environment when managed in surface
impoundments or other retention ponds (or otherwise managed on the
land, i.e., during a spill) prior to discharge to the receiving water
body. Both surface impoundments and retention ponds can have high
potential for discharge of the wastewaters they contain to underlying
groundwater (see RCRA sections 1002(b)(7) and 3005(j)). Discharge
treatment requirements based on State water quality standards are
calculated by taking the nature of the effluent and the receiving water
body into account. An effluent treated to meet water quality standards
for a surface water body could leach into groundwater, depending on the
hydrogeology of the site, if subsequently held in a surface impoundment
or retention pond prior to discharge. This leachate could undergo a
lesser degree of dilution in groundwater than in the intended surface
water body, potentially posing unacceptable risks to groundwater users
through a drinking water well. This risk is not accounted for under the
current federal CWA standards.\4\ Therefore, EPA continues to believe
that retaining

[[Page 27273]]

jurisdiction over hazardous wastewaters under RCRA prior to their
NPDES-permitted discharge is necessary to ensure protection of human
health and the environment.
---------------------------------------------------------------------------

\4\ The current federal National Pollution Discharge Elimination
System (NPDES) program under the CWA does not require permitting
authorities to issue permits for discharges of wastewater to
groundwater (See 40 CFR 122.1 and 122.2). The exception is those
instances in which a discharge to surface water may occur via a
hydrologic connection between a groundwater and surface water. In
addition, some states have chosen to exceed federal program
requirements and do issue such permits. See also U.S. EPA NDPES.
Permit Writers' Manual, United States Environmental Protection
Agency, Office of Water, December 1996. EPA-833-B-96-003.
---------------------------------------------------------------------------

Another reason why these wastewaters should not be categorically
designated as non-hazardous prior to discharge is because that would
effectively exclude their treatment sludges as well (by avoiding the
application of the derived-from rule).\5\ As explained below in more
detail, treatment sludges from these dilute wastes cannot be assumed to
be low risk. In fact, treatment sludges can contain high levels of the
very chemicals (e.g., heavy metals) that caused the original waste to
be listed. In these cases, the hazard that was identified as the
original basis of listing has not been removed; it has merely been
transferred to another type of waste matrix (i.e., from a water to a
solid).
---------------------------------------------------------------------------

\5\ These wastes would still be subject to the hazardous waste
characteristics of 40 CFR Part 261, Subpart C, but, as explained
later in this preamble section, such coverage would not address all
the unacceptable risks potentially posed by the chemicals in these
wastes.
---------------------------------------------------------------------------

In sum, EPA has excluded (through the wastewater treatment unit
exclusions) hazardous wastewaters from regulation where we believe
there is a reasonable basis to do so, grounded in the protection of
human health and the environment, and the statute excludes from RCRA
jurisdiction industrial wastewater discharges subject to CWA discharge
permits. But based on the available data, EPA believes that a blanket
wastewater exclusion from regulation is not warranted. Instead, EPA
will continue to develop approaches (e.g., targeted exemptions and HWIR
exemption levels) to address wastewaters that are be considered low
risk.

Regulating Derived-From Wastes

As explained in 40 CFR 261.3(c)(2)(i), any solid waste derived from
the treatment, storage, or disposal of a hazardous waste is also
considered a hazardous waste. Specific examples of these derived-from
wastes include sludges, spill residues, ash, emission control dust, and
leachate. For derived-from wastes that change location but are
otherwise unmodified, the question of their continued regulation is
more straightforward. Because such waste would have the same levels of
toxic constituents and presumably the same potential exposure patterns
as the waste that was evaluated for the original hazardous listing
determination, it would pose the same unacceptable risk as the original
waste.
Other types of derived-from wastes may have a different physical
form than the original waste, but still present the same chemical
hazard. Leachate derived from the disposal of hazardous waste, for
example, can contain the same chemicals as found in the original waste.
When EPA analyzed leachate for purposes of promulgating effluent
guidelines for landfill leachate (65 FR 3007, January 19, 2000), we
found that wastewater generated as a result of a particular industrial
operation can have a similar pollutant profile to leachate generated by
a landfill receiving the bulk of their waste from that same operation
(65 FR 3008, 3012, January 19, 2000). During treatment, chemicals in
hazardous wastewater are transferred to the sludge, which is disposed
of in the captive landfill. Once the sludge is disposed in a landfill,
persistent chemicals in this sludge can then transfer to the leachate,
which, when managed in a wastewater treatment unit, transfers them once
more to sludge. Although changed in form, the treatment sludge (and
leachate) could still pose similar unacceptable risks as the originally
listed waste, depending on actual concentrations and exposure patterns.
We also found considerable differences between the leachate samples
from hazardous and those from non-hazardous waste landfills in both
numbers of constituents of concern and their concentrations. Hazardous
waste landfill leachate contained a greater number of constituents than
non-hazardous waste landfill leachate, and constituents found in both
hazardous and non-hazardous waste landfill leachate were generally
present in hazardous waste landfill leachate at concentrations an order
of magnitude higher than those found in non-hazardous waste landfill
leachate.\6\ Absent a risk assessment, it is not possible to determine
whether the levels of these constituents pose unacceptable risk.
However, the presence of such constituents creates a continuing concern
regarding leachate derived from hazardous waste.
---------------------------------------------------------------------------

\6\ Development Document for Final Effluent Limitations
Guidelines and Standards for the Landfills Point Source Category,
EPA-821-R-99-019, U.S. EPA, January 2000.
---------------------------------------------------------------------------

The other broad category of derived-from waste are treatment
residues. At least six commenters cited the D.C. Circuit Court of
Appeals observation in Shell Oil Co. v. EPA, 590 F.2d at 752 that ``the
derived-from rule becomes counterintuitive as applied to processes
designed to render wastes nonhazardous.'' However, the presumption that
treatment always renders hazardous waste nonhazardous is overly
simplistic. This presumption does not take into account all products of
treatment. Even treatment that operates properly is often designed to
isolate a hazardous residual. For example, wastewater treatment
designed to produce a sufficiently clean effluent for discharge is also
designed to move the hazardous constituents from the wastewater into
the sludge. The resulting de-watered sludge, while much lower in volume
than the original hazardous wastewater, has the potential to have much
greater concentrations of hazardous chemicals. As explained above, once
the sludge is disposed in a landfill, persistent chemicals in this
sludge can then transfer to the leachate, which, when managed in a
wastewater treatment unit, transfers them once more to sludge.
The derived-from rule thus ensures that the chemicals in the
originally listed waste that are transferred to another matrix when the
waste is managed remain under RCRA Subtitle C control. Without the
derived-from rule, a hazardous wastewater could be treated so that
hazardous constituents are moved to the sludge. If the generator could
claim that the resulting sludge, regardless of chemical concentration,
no longer meets the listing description, then that sludge could be
handled as non-hazardous waste, and placed in an unlined industrial
landfill, or sent to a land application unit.\7\ The resulting leachate
would not necessarily be collected. Instead, those chemicals that first
caused the waste to be listed could potentially now enter the
environment and, depending on the actual chemical concentrations and
exposure patterns, could pose unacceptable risks.
---------------------------------------------------------------------------

\7\ These wastes would still be subject to the hazardous waste
characteristics of 40 CFR Part 261, Subpart C, but, as explained
later in this preamble section, such coverage would not address all
the unacceptable risks potentially posed by the chemicals in these
wastes.
---------------------------------------------------------------------------

Other types of treatment, which result in combining wastes with
different chemical concentrations, can result in dilution of those
chemicals, but may not adequately address the hazard they could pose.
As mentioned earlier in the discussion on regulating mixtures,
combining wastewaters for centralized treatment is often a legitimate
treatment practice, but the diluting effect of such treatment does not
address the transfer of persistent chemicals to the sludge.
Finally, treatment that reduces the amount of organic chemicals in
a waste does not typically address the risk from

[[Page 27274]]

metals in the waste. For example, biological treatment and
incineration, which are among the most aggressive forms of treatment,
are designed to reduce or destroy organic chemicals. However, these
types of treatment do not address heavy metals and may form chemical
by-products (e.g., dioxins) that could pose unacceptable risks, if not
managed properly. For example, baghouses on combustion devices serve to
collect hazardous constituents that would otherwise be emitted to the
air from the combustion process, and the dust that is removed from the
baghouses predictably contains metals that were in the original waste.
In response to industry comments, EPA will explore specific approaches
for dealing with biological treatment residues and has already begun
considering an alternative approach to address combustion residues (See
Sections X.C. and X.D. of this preamble.) EPA will also continue to
develop approaches (e.g., targeted exemptions and HWIR exemption
levels) to exempt other waste streams that are currently captured by
the derived-from rules but pose low risks.

Historic Information on Mixture and Derived-From Wastes

As we discussed in the 1999 proposal, EPA's experience with the
delisting program further supports retaining the mixture and derived-
from rules as a necessary part of hazardous waste identification.
Generators can petition EPA under 40 CFR 260.22 to exclude a waste
produced at a particular facility from the definition of hazardous
waste. Such petitions must demonstrate that the waste does not meet any
of the criteria for which it was listed nor has other attributes that
might result in the waste being hazardous.
Over the 20-year period from 1980 through 1999, EPA reviewed over
900 petitions to delist wastes, and granted delistings to 136 waste
streams generated at 115 separate facilities. Most of the petitions
(i.e., more than 600) were withdrawn or mooted before the review was
complete; 108 were denied. Most of these denials were based on lack of
information. In at least 13 of the 36 cases where enough information is
available in the source documentation to determine whether a waste was
a mixture or derivative, we denied delisting petitions for mixtures or
residuals of listed waste because risk analyses indicated that the
toxicity and leaching potential of hazardous chemicals in those wastes
posed unacceptable risk to human health. These mixture and derived-from
wastes had potentially hazardous levels of a wide range of chemicals
including barium, cadmium, chromium, lead, mercury, nickel, benzene,
benzo(a)pyrene, cyanide, chloroform, 1,1-dichloroethane, 1,1-
dichloroethylene, 2,4-dinitrotoluene, methylene chloride,
trichloroethylene, and vinyl chloride.\8\
---------------------------------------------------------------------------

\8\ U.S. EPA Evaluation of Hazardous Waste Delisting Program,
December 2000; and Analysis of the Delisting Petition Data
Management System, U.S. EPA, September 1998). EPA Docket 99-WH2P-
FFFFF.
---------------------------------------------------------------------------

We have also identified possible damage cases associated with
mixture and derived-from wastes. For example, there are Superfund sites
that contain mixture and derived-from wastes (See 50 FR 658). We have
identified at least twenty sites that may have involved the
mismanagement of mixture and derived-from wastes.\9\ The sites
identified include cases of extensive contamination of soils and
groundwater with metals (e.g., arsenic, lead, mercury), cyanide, and
organics (e.g., benzene, toluene, and xylenes). It is very difficult to
identify the full range of damage cases that specifically involve waste
mixtures or derivatives since neither EPA nor other parties track or
categorize waste based on its status under the mixture or derived from
rules.
---------------------------------------------------------------------------

\9\ EPA 2000. Releases of Hazardous Constituents Associated with
Mixture and Derived-from Wastes (An Update) U.S. EPA, April 2000.
---------------------------------------------------------------------------

The legislative history of RCRA also provides examples of damage
cases caused from disposal of mixture and derived-from hazardous
wastes. In introducing the purpose of Subtitle C, the House Committee
on Interstate and Foreign Commerce cited seven pages of damage cases,
stating, ``The most effective way of illustrating the dangers of
improper hazardous waste disposal is perhaps to cite actual instances
of damage caused by current hazardous waste disposal practices. The
following section is merely illustrative of the problem. Far more cases
could be cited, even more have gone unreported.'' H.R. Rep. No. 94-1491
(94th Cong. 2d Sess. 1976) 17-23. Of the 59 instances described in the
House Committee Report, at least 40 involved spills, leachate or runoff
from landfills, lagoons or waste storage facilities. Leachate and run-
off are derived-from wastes, as are spills from storage and disposal
facilities, and some of the sources contained mixtures of hazardous and
non-hazardous solid wastes.

Intrinsic Chemical Properties of RCRA Hazardous Waste ``Mixtures'' and
``Derived-From'' Wastes

We also analyzed the information in EPA's National Hazardous Waste
Constituent Survey (NHWCS) Database to assess the intrinsic physical
and chemical properties of RCRA hazardous waste ``mixtures'' and
``derived-from'' wastes. The purpose of the NHWC Survey was to collect
descriptive information about the identity and measured concentrations
of chemical constituents contained in RCRA hazardous wastes. The NHWCS
was a one-time, voluntary participation mail survey we administered in
1996, providing a single-year ``snapshot'' of the intrinsic physical
and chemical properties of RCRA hazardous wastes. It is EPA's most
comprehensive and current database about hazardous waste constituents.
We benchmarked the 1996 survey to data already collected in our 1993
Biennial Reporting System (BRS) database--which contains data provided
by the 1993 universe of RCRA hazardous waste large quantity
generators--by pre-loading survey questionnaires with the known 1993
BRS data for the NHWC survey facilities, and asking facilities to
verify the known BRS data, as well as to provide new data about the
known chemical constituents in the RCRA hazardous wastes they managed
(constituent data are not contained in the BRS database). This analysis
is presented as a technical supplement to this rulemaking for purpose
of public understanding of the intrinsic nature of these two groups of
wastes, which we currently regulate as RCRA hazardous. This
supplemental analysis corroborates the substance of our proposed rule
(64 FR 63382-63461, Nov. 19, 1999).
Although the survey results apply to a subset of the total universe
of waste and should not be extrapolated to the larger universe of RCRA
hazardous waste generators, the information provides valuable insight
into the types and levels of chemicals that could be present in such
wastes. A large number of waste streams captured in the NHWCS were
identified by their generators as mixtures of solid waste and hazardous
waste or derived-from hazardous wastes. The analysis revealed that
potentially hazardous chemical constituents, have been and can be
present in wastes mixed with or derived-from, RCRA hazardous wastes.
Although this analysis is not a quantitative risk assessment, this
conclusion is supported by the presence of persistent, bioaccumulative,
and toxic (PBT) chemicals in these two waste groups, some of which are
at relatively high concentrations. Consequently, we continue to be
concerned about the potential risks posed by the mismanagement of RCRA
hazardous

[[Page 27275]]

waste ``mixtures'' and ``derived-from'' wastes.
For more information about this analysis, please see the background
document Analysis of RCRA ``Mixtures and Derived-from'' Hazardous Waste
Constituent Data, which is available to the public from the RCRA
Docket. The NHWCS database is available to the public via the Internet
at http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/economic.htm.

Regulatory Coverage by the Toxicity Characteristic

EPA also does not agree with comments that the mixture and derived-
from rules are not necessary because the Toxicity Characteristic (TC)
provides regulatory coverage of these wastes. The TC currently sets
regulatory levels for only 40 chemicals. (see 40 CFR 261.24). On the
other hand, the hazardous waste listings are based on hundreds of
different chemicals. (see Appendix VII to 40 CFR Part 261). In
addition, the TC levels are the result of laboratory analyses to
predict whether a waste is likely to leach chemicals into groundwater
at hazardous levels, not the result of a comprehensive risk assessment.
Depending on the actual constituents in a waste and their
concentrations, wastes with constituents that fall below TC levels can
still pose unacceptable risks to human health and the environment if
mismanaged. (55 FR 11799). EPA has listed wastes based on the presence
of constituents below the TC levels. For example, in the final listing
decision for spent hydrotreating and hydrorefining catalysts from
refinery operations, we analyzed the potential risk from arsenic and
benzene using input leachate concentrations capped at TC regulatory
levels. The results of this analysis suggested unacceptable risks posed
by these wastestreams from concentrations below the TC regulatory
levels (63 FR 42154). The mixture and derived-from rules are necessary
for capturing such wastes that could pose unacceptable risks from
chemicals without TC levels and for risks not addressed by the TC
approach.

Conclusion

When EPA determines that a waste is capable of posing a hazard to
human health or the environment when improperly managed, that
determination is based on consideration of several different factors,
including the toxicity, persistence, degradability in nature, the
potential of chemicals to bioaccumulate in tissue, flammability,
corrosiveness, and other hazardous characteristics and related factors.
The act of mixing, storing, disposing or even treating the waste does
not guarantee removal of the hazard posed by these chemicals, nor does
it remove EPA's obligation to ensure that the hazards presented by the
waste continue to be controlled from the cradle to the grave, even when
it is transferred to another waste matrix. Nevertheless, EPA will
continue to develop approaches to exempt low-risk wastes from full
Subtitle C regulation, as appropriate. Since the original promulgation
of the mixture and derived-from rules, we have invited suggestions as
to better ways of handling the difficult issues associated with the
mixing, treating, storing, disposing, and otherwise managing waste
following its generation. See 45 FR 33095 (May, 19, 1980). We have
considered and are continuing to pursue suggestions for targeted
exemptions (e.g., the CMA suggestions discussed at Section X of the
preamble) as well as a risk-based exit level approach to identifying
low-risk wastes.

B. Legality of the Mixture and Derived-From Rules

EPA received comments in response to both the 1995 and 1999 HWIR
proposals on RCRA Subtitle C jurisdiction over mixtures and derivatives
from the management of listed hazardous wastes. Of the 42 commenters
who specifically commented on the statutory authority for these rules,
38 were received from industry (including utilities and trade
associations), two were from waste management companies, one was from a
waste management association and one was from an individual commenter.
Almost all these comments expressed the view that EPA lacked statutory
authority to promulgate these rules, although other commenters who
generally supported retention of the mixture and derived-from rules
expressed the view that these wastes are properly under RCRA Subtitle C
jurisdiction.
The waste management association agreed that EPA had statutory
authority under RCRA to promulgate the mixture and derived-from rules
in 1980, and that EPA also had ample authority to retain the basic
rules now without change. The commenter, citing Shell Oil Corp. v. EPA,
believed that the rules were consistent with EPA's legal authority
under RCRA section 3001 to determine when wastes are hazardous based on
listing criteria, and under RCRA sections 3002-3004 to impose
regulatory standards until wastes have ceased to pose a hazard to the
public.
As noted, most commenters expressed the view that EPA is acting
beyond its statutory authority by retaining the mixture and derived-
from rules. These comments asserted three main points: (1) Mixture and
derived-from wastes do not meet the statutory definition of hazardous
under RCRA section 1004(5); (2) EPA has not met the requirements under
section 3001, 42 U.S.C. Section 6921 and 40 CFR 261.10 and 261.11 for
designating wastes as hazardous; and (3) EPA has no authority under
sections 3002-3004 of RCRA to designate wastes as hazardous. A summary
of each of these specific issues raised by commenters, and EPA's
response to these issues, is provided below. For more information on
these comments and EPA' responses, please see Hazardous Waste
Identification Rule: Revisions to the Mixture and

Derived-From Rules Response to Comments Document.

(1)(a) Comment: Mixture and Derived-From Wastes Do Not Meet the
Statutory Definition of Hazardous Under RCRA Section 1004(5)
Numerous commenters from industries, industry associations, utility
companies, utility company associations and waste management companies
generally believed that the mixture and derived-from rules were too
broad and swept in many wastes which did not meet the statutory
definition of hazardous wastes, and that the derived-from rule in
particular was not supported by statutory authority. One commenter even
felt that the derived-from rule was a ``legal fiction'' because
treatment residuals must be managed as if the treatment had not
occurred. Commenters noted that EPA only was authorized under the
Resource Conservation and Recovery Act (RCRA) to designate as hazardous
waste those solid wastes that EPA determined may (1) cause, or
significantly contribute to an increase in mortality or serious
illness, or (2) pose a substantial present or potential hazard to human
health or the environment when improperly managed (RCRA section
1004(5), 42 U.S.C. 6903(5)). Commenters expressed the view that EPA can
regulate under Subtitle C only those solid wastes that EPA determined
pose substantial hazards per the language in Section 1004(5) of RCRA.
Many commenters also noted that, in their view, many of these wastes
pose minimal or no threat to the environment and public health. The
majority of these commenters believed that EPA made no attempt to
demonstrate that derived-from wastes met the statutory definition of
hazardous waste. Instead, these commenters believed EPA simply drew
conclusions that these materials were

[[Page 27276]]

hazardous waste, even though many derived-from wastes had not met the
statutory definition of hazardous waste. They also noted that EPA has
admitted that many derived-from wastes pose little risk to human health
or the environment. Therefore, they claim that the derived-from rule
was not a legally valid approach to regulating materials that result
from the management of hazardous waste.
(1)(b) EPA Response
While we agree that the mixture and derived-from rules capture some
waste that may actually pose quite low hazard, we have implemented and
continue to pursue approaches (such as today's revisions) to exclude
such waste from full Subtitle C regulation. Nevertheless, these rules
are a necessary component of cradle-to-grave waste management, to
protect human health and the environment from unacceptable risks. EPA
does not agree with comments that mixtures and derivatives do not meet
the definition of ``hazardous waste'' in section 1004(5) of RCRA, nor
do we agree that Congress did not intend these wastes to be regulated
under Subtitle C of RCRA.
The definition of hazardous waste is a broad definition which
encompasses solid wastes or combinations of solid wastes which, because
of their ``quantity, concentration, or physical, chemical, or
infectious characteristics may * * * pose a substantial present or
potential hazard to human health or the environment when improperly
treated, stored, transported or disposed of, or otherwise managed.''
Because they originate from waste that has already been determined to
be hazardous, EPA has a reasonable basis to conclude that mixtures and
derivatives could also pose a potential or present hazard to human
health or the environment if not properly managed. The original listing
of the waste already establishes the reasons, i.e., the ``quantity,
concentration, or physical, chemical, or infectious characteristics''
for having identified the listed waste as hazardous. It is reasonable
to conclude, without information to the contrary, that both mixtures
and derivatives of such wastes may pose a substantial potential or
present hazard to human health or the environment if not properly
managed, and therefore fall under the definition of hazardous waste in
RCRA section 1004(5).
Nothing in the section 1004(5) definition of hazardous waste
requires EPA to prove that every member of a category of waste poses a
hazard. In fact, many waste listings describe categories or ``classes''
of hazardous wastes because they cover a range of materials that are
not identical in composition.
EPA also does not agree with commenters' assertion that wastes
derived from the treatment, storage, or disposal of listed hazardous
wastes in particular do not meet the section 1004(5) definition. As
explained in section VII.A.2, residuals from the treatment of hazardous
wastes can contain higher concentrations of the chemicals that led to
the hazardous waste listing in the first place, and therefore may pose
a present or potential hazard to human health or the environment if
improperly managed. Indeed, the objective of many forms of treatment is
precisely to isolate and collect hazardous constituents, often in
concentrated form, for further management. For example, de-watering of
waste, e.g., to make it easier to transport, is a form of treatment
that often does not significantly change the character of the waste
other than to leave it in a more compact and concentrated form. At the
more aggressive end of the treatment spectrum, baghouses on hazardous
waste combustion devices collect hazardous constituents that would
otherwise be emitted to the air from the combustion process, creating
dust that predictably contains any metals that were in the original
wastes as well as products of incomplete combustion. Congress
specifically expressed concern in RCRA about treatment residues created
by federal and state pollution control laws, RCRA 1002(b)(3). The
potential for persistent hazardous constituents in treatment residues
and the Congressional findings in the RCRA statute support EPA's
conclusion that residuals from the treatment, storage and disposal of
listed hazardous waste may pose a substantial present or potential
hazard.
EPA acknowledges that not all mixtures and derivatives pose hazards
to human health and the environment (see, e.g. 57 FR 21451). There are
mechanisms to address this fact, and we are continuing to pursue
approaches to exempt low-risk wastes. First, RCRA and EPA regulations
provide for the delisting of listed hazardous waste. RCRA 3001(f); 40
CFR 261.20 and 40 CFR 261.22. Since the federal delisting program took
effect in 1980, EPA has excluded an estimated 45 million tons of waste,
resulting in an estimated cumulative cost savings between $1.1 billion
and $1.3 billion dollars (in 1999 dollars). In 2000 alone, we estimate
cost savings of approximately $105.4 million.\10\ In the 1995 HWIR
proposal, EPA stressed the continued need for the delisting program,
although we also acknowledged that it had not provided an efficient
solution to the regulation of low-risk wastes. However, as discussed in
Section VIII.C of this preamble, since the delisting program was
delegated to the EPA Regions on October 10, 1995, a number of
innovations have been adopted that have greatly improved the efficiency
and effectiveness of the delisting program. EPA will continue these
efforts and others in order to keep improving the delisting process.
---------------------------------------------------------------------------

\10\ U.S. EPA Evaluation of Hazardous Waste Delisting Program,
December 2000.
---------------------------------------------------------------------------

In addition, as EPA has identified specific mixtures and derived-
from wastes which no longer meet the definition of hazardous waste, and
has therefore established a number of exclusions in 40 CFR 261.3.
Currently, there are over a dozen types of hazardous waste mixtures and
residuals excluded or conditionally exempted under section 261.3. See
the ``Table of Revisions to 40 CFR 261.3'' in Section VII.C.2 of this
notice for a list of these exclusions. This is in addition to other
exclusions and conditional exclusions set forth in 40 CFR 261.4 as well
in other parts of the hazardous waste regulations.
Furthermore, as discussed in Section VI of this notice, EPA is
continuing work to develop exit levels for listed hazardous wastes, so
that listed wastes can become ``delisted'' automatically, under a self-
implementing procedure. But, as also explained in Section VI of this
notice, that is a complex undertaking and, despite best efforts, EPA is
not able at this time to propose a technically supported concentration-
based exemption.\11\ Also, as explained in Section X of this preamble,
we are also investigating and will actively pursue other specific
exemption proposals.
---------------------------------------------------------------------------

\11\ Congressional report language accompanying EPA's FY 2001
appropriations act directs EPA to submit the HWIR model to an
independent peer review, and respond publicly to the findings of the
peer review prior to using it to establish regulatory
determinations. S. Rep. No. 106-410 at 90 (2000) ). EPA is currently
in the process of preparing for that peer review.
---------------------------------------------------------------------------

EPA continues to believe, as it did in 1980, that it would be
virtually impossible to try to identify all possible waste mixtures and
treated wastes and assess their hazards individually. EPA's rule
reasonably retains jurisdiction over both broad classes and places the
burden of proof on the regulated community to show that a particular
waste has ceased to present a hazard.
Even if all listed hazardous waste mixtures and derivatives could
not be

[[Page 27277]]

said to meet the statutory hazardous waste definition, at the very
least it is reasonable and consistent with RCRA to presume that
mixtures and derivatives of listed hazardous wastes remain hazardous
under the definition, unless that presumption is rebutted through the
delisting process. As discussed further in the next section, Congress
established clear standards for hazardous waste identification, but did
not speak specifically to the issue of the circumstances under which
mixtures and derivatives of listed hazardous wastes should be
regulated. Under these circumstances, EPA must interpret and implement
the statute in a way that effectuates the statutory objectives. The
mixture and derived-from rules are the only implementation approach
that EPA is aware of at this time that effectuates the protective
purposes of RCRA.
(2)(a) Comment: EPA Has Not Met the Requirements Under Section 3001, 42
U.S.C. 6921 and 40 CFR 261.10 and 261.11 for Designating Wastes as
Hazardous
These commenters also disagreed with EPA's claim of authority under
section 3001 (60 FR at 66348, 64 FR 63390). The commenters believed
that EPA had not followed the required procedures or made the findings
required by RCRA to identify ``mixture and derived-from wastes'' as
hazardous. They noted that sections 3001(a) and (b) outline a two-step
process for classifying wastes as hazardous. EPA first must specify
criteria to determine if the waste is ``hazardous,'' 42 U.S.C. 6921(a),
which is defined as presenting a substantial present or potential
hazard to human health or the environment 42 U.S.C. 6904(5). Once the
criteria are established--as they have been in 40 CFR 261.10 and
261.11--the commenters stated that EPA must apply these criteria to
identify a characteristic of hazardous waste or to list a waste as
hazardous. In these commenters' view, the mixture and derived-from
rules identify a broad class of wastes as hazardous without regard to
the criteria established by EPA. Also, they noted that the proposal did
not discuss how mixtures and derived-from wastes pose a substantial
present or potential threat to human health or the environment, nor did
EPA discuss concentration levels, mobility, persistence, or any other
objective factors of hazardousness that are listed in the statute or
the regulations.
In addition, numerous commenters from industries, industry
associations, utility companies and utility company associations
disagreed with EPA identifying mixture and derived-from wastes as a
``class'' under 40 CFR 261.11 (60 FR at 66348, 64 FR at 66390). They
believed that such identification required a finding that EPA had
reason to believe that individual wastes within the class ``typically
or frequently are hazardous'' under the definition at RCRA section
1004(5) (see 40 CFR 261.11(b)). Commenters noted that EPA's own
longstanding practice was that, in a class-wide listing determination,
``typically or frequently'' meant that more than 50 percent of the
samples taken from that class exhibited some or all of the 40 CFR
261.11(a) criteria (see, e.g., 56 FR 48020, Sept. 23, 1991 and 45 FR
33114, May 19, 1980). The commenters stated that EPA historically has
required that samples of a waste class contain concentrations of toxic
constituents at 100-1000 times specified health-based numbers to be
considered as posing a ``substantial hazard'' under 40 CFR 261.11(a)(3)
(see, e.g., 56 FR. 48018, Sept. 23, 1991 and 57 FR 21453, May 20,
1992). They noted that EPA generally requires that wastes typically and
frequently contain toxic constituents at ``many times'' health-based
levels and that such constituents be mobile and persistent. The current
proposal made no reference to these prior practices, nor did it offer
evidence that EPA collected or analyzed any samples or otherwise
attempted to demonstrate that 50 percent--or any substantial
percentage--of mixtures or treatment residues met any of the specific
criteria of Sec. 261.11(a). Also, they commented that the proposal
offered nothing responsive to the 100-1000 times health-based numbers
requirement. In addition, they noted that the class must have
``sufficient uniformity'' to apply the criteria in 40 CFR 261.11 (45 FR
33114). The commenters felt that it was obvious that the class of
mixture and derived-from wastes was anything but uniform, a point
admitted by EPA (45 FR 33095-96, ``the potential combinations of listed
wastes and other wastes are infinite''). Therefore, the class did not
have the requisite uniformity needed to be classified as hazardous.
(2)(b) EPA Response
EPA does not agree with comments that the Agency lacks statutory
authority under RCRA Section 3001 for either the mixture rule or the
derived-from rule. We have the statutory authority to promulgate these
rules as part of the authority to ``develop and promulgate criteria for
identifying the characteristics of hazardous waste and for listing
hazardous waste.'' Among the criteria are the provisions of 40 CFR
261.3, which provide generally applicable criteria for the
identification of hazardous waste. The mixture and derived-from rules
are included in section 261.3(a)(2), which states that a solid waste is
a hazardous waste if ``[i]t meets any of the following criteria.''
These rules ensure that listed hazardous wastes that are mixed with
other wastes or treated in some fashion do not escape regulation as
hazardous waste until EPA has made some determination that they no
longer threaten human health or the environment. This section also
includes the exclusions from the definition of hazardous waste,
including those promulgated today, where EPA has made specific findings
on the record that the excluded wastes are no longer hazardous under
the criteria set forth in the exclusions. We will continue to pursue
additional approaches to exempt low-risk wastes, as appropriate.
The commenters' position rests largely on the assumption that
mixtures and derivatives of wastes are entirely new and distinct
substances from the originally listed waste, leading to the apparent
conclusion that EPA must make a separate, record-based finding of
hazardousness for each of the infinite variations of mixtures and
derivatives generated from the wastes EPA has listed. EPA disagrees. In
upholding the ``contained-in policy,'' the U.S. Court of Appeals for
the D.C. Circuit deferred to EPA's conclusion that a listed hazardous
waste cannot be presumed to change character when it is mixed with an
environmental medium. Chemical Waste Management v. EPA, 869 F.2d 1526,
1539 (1989). We believe that the same reasoning applies to the mixture
rule. Similarly, as discussed in Section VII.A.2, waste management
residuals can contain constituents from the originally listed waste at
even higher concentrations than the original waste and, therefore, may
pose a hazard. Indeed, EPA views the mixture and derived-from rules as
applications of the general principle that ``a hazardous waste will
remain a hazardous waste'' unless it is excluded through a regulatory
process. 40 CFR 261.3(c)(1). See Chemical Waste Management, 869 F.2d at
1539 (upholding contained-in policy as interpretation of
Sec. 261.3(c)(1)).
EPA's approach is consistent with Congress' intention that
hazardous waste be regulated for the long term under a comprehensive
regulatory program. One of the findings upon which the 1976 RCRA
legislation was based was that ``hazardous waste presents, in addition
to the problems associated with nonhazardous solid waste, special
dangers to health and requires a greater degree of regulation than does
nonhazardous solid waste.''

[[Page 27278]]

Public Law No. 94-580, section 1002(5). With enactment of the Hazardous
and Solid Waste Amendments (HSWA) in 1984, Public Law No. 98-616,
Congress strengthened that provision and added three more findings:
``the placement of inadequate controls on hazardous waste management
will result in substantial risks to human health and the environment;
if hazardous waste management is improperly performed in the first
instance, corrective action is likely to be expensive, complex , and
time consuming; certain classes of land disposal facilities are not
capable of assuring long-term containment of certain hazardous wastes *
* *''. RCRA section 1002(b)(5), (6), (7). Similarly, when RCRA was
enacted in 1976, Congress stated one of the objectives of the Act was
``regulating the treatment, storage, transportation, and disposal of
hazardous wastes which have adverse effects on health and the
environment.'' Public Law No. 94-580, 1003(a)(4). This provision too
was replaced with a stronger statement by HSWA, that an object of the
statute is ``assuring that hazardous waste management practices are
conducted in a manner which protects human health and the
environment.'' (Emphasis added.) RCRA 1003(a)(4). Further, HSWA added
as national policy that hazardous waste ``should be treated, stored, or
disposed of so as to minimize the present and future threat to human
health and the environment.'' RCRA 1003(b). It is clear that Congress'
principal objective under Subtitle C was protecting against threats to
human health and the environment caused by hazardous waste. We
acknowledge that such a goal does not imply that all mixtures and
derived-from wastes must be regulated under full Subtitle C
requirements, regardless of the potential risks they pose, but we
believe that it is reasonable to regulate these wastes until it is
shown that such wastes do not pose a hazard.
The D.C. Circuit Court of Appeals has characterized RCRA as
establishing ``a ``cradle-to-grave'' regulatory structure overseeing
the safe treatment, storage and disposal of hazardous waste.'' United
Technologies Corp. v. EPA, 821 F.2d 714, 716 (D.C. Cir. 1987). The
mixture and derived-from rules are a necessary part of this approach,
by maintaining jurisdiction over mixtures and derivatives of already
listed waste. Without these rules, as explained in Section VII.A.(2),
the ``cradle-to-grave'' structure would have a major loophole,
undermining the objectives of RCRA.
The delisting provision supports the mixture and derived-from rules
as a means to address wastes that could pose unacceptable risks. In
amending RCRA section 3001 in 1984, Congress enacted subsection (f) to
require the Agency to ``consider factors (including additional
constituents) other than those for which the waste was listed'' if the
Agency ``has a reasonable basis to believe that such additional factors
could cause the waste to be a hazardous waste.'' The legislative
history shows that Congress was concerned that both as generated wastes
and wastes resulting from treatment were exiting the Subtitle C system
while still hazardous. ``The delisting process allows petitioners
(usually individual hazardous waste generators or treatment facilities)
the opportunity of showing that their wastes are significantly
different--because of treatment, or because they are generated in a
different process--from listed wastes of the same type. * * * Under
this amendment, there would no longer be a risk that delisting a waste
means releasing waste which may still be hazardous from regulation.''
H.R. Rep. No. 98-198 Part I (May 17, 1983). Congress made this change
because it believed that under its previously existing delisting
regulations, EPA allowed wastes that remained hazardous to exit the
Subtitle C system. S. Rep. No. 98-284 (Oct. 28, 1983). The language and
legislative history reflect Congress' assumption that treatment
derivatives from listed wastes would remain subject to Subtitle C
absent a delisting.
The land disposal restrictions (LDR) provisions of the statute
further demonstrate that the mixture and derived-from rules are
consistent with Congress' intent. The statute authorizes EPA to
promulgate regulations establishing levels or methods of treatment,
``if any,'' that substantially diminish the toxicity or mobility of the
hazardous waste, and provide that the waste may thereafter be disposed
of in a land disposal facility that ``meets the requirements of
[Subtitle C].'' RCRA section 3004(m). This section demonstrates two
things. (1) Congress contemplated the possibility that there may be
hazardous wastes for which no form of treatment would be adequate; and
(2) Congress assumed that waste that was treated according to the
promulgated treatment standards would nonetheless still be disposed of
in a Subtitle C (hazardous waste) facility. This provision is at odds
with the commenters' assertion that, once treated, a hazardous waste
becomes a fundamentally different waste and is unregulated unless EPA
undertakes a separate rulemaking to list the treated waste.
Other provisions of the 1984 amendments to RCRA relating to land
disposal provide further support for the mixture and derived-from
rules. See, e.g., section 3004(o) (establishing minimum technological
requirements for land-based hazardous waste management units); section
3004(p) (establishing groundwater monitoring requirements); section
3005(c)(3) (requiring 5-year permit reviews for land disposal
facilities); section 3005(e)(2), (3) (establishing interim status
termination dates for certain non-compliant land disposal facilities);
section 3005(i), (j) (establishing specific additional requirements for
certain land-based units); section 1002(b)(7) (finding that certain
classes of land disposal facilities are not capable of assuring long-
term containment). Some commenters suggest that treatment residuals
from listed hazardous wastes do not remain hazardous. We believe it is
unlikely Congress would have created such stringent requirements for
land disposal, if it intended for treatment residuals to escape
Subtitle C regulation.
Taken to the extreme, the view that mixtures containing listed
wastes should not be regulated as hazardous wastes would imply that
most listed hazardous wastes, even if they reached a management unit in
``pure'' form, would cease to be hazardous once they entered the unit,
since most units contain mixtures of different wastes. However, the
RCRA statute clearly assumes that units would not only receive, but
continue to contain, hazardous waste. See, e.g. section 3005(j)(11) and
(12)(A), Moreover, the comprehensive requirements mandated for
hazardous waste management units, including the technical standards of
section 3004 and the permitting regime of section 3005, could be
undermined if facilities receiving listed hazardous wastes could argue
that their management units are subject to this scheme only as long as
they are receiving the waste, but that they become exempt thereafter
since the units do not contain hazardous waste.
Various provisions in RCRA appear to contemplate that at least some
hazardous waste mixtures and derivatives would themselves be hazardous.
See, e.g., section 3004(d)(2)(A), (B) (addressing liquid hazardous
wastes, ``including free liquids associated with any solid or sludge,''
suggesting that liquid derivatives of hazardous waste would themselves
be hazardous). Another example is the language in section 3005(b),
which requires permit applicants to provide information regarding
hazardous wastes and ``combinations of * * * hazardous waste and any
other solid waste'' to be

[[Page 27279]]

managed at the permitted facility, as well as information regarding the
site at which the ``products of treatment'' of hazardous waste will be
managed.
Finally, the appropriations act provision that EPA is implementing
with today's rule requires that the mixture and derived-from rules
would continue in effect while EPA developed revisions to the
regulations. Public Law No. 102-389, 106 Stat. 1571 (October 1992).
That provision instructed EPA to ``promulgate revisions to paragraphs
(a)(2)(iv) and (c)(2)(i) of 40 CFR 261.3, as reissued on March 3, 1992
* * *''. Congress expressed no intent that these rules be rescinded or
replaced.
We also disagree with commenters' assertion that the mixture and
derived-from rules violate the ``two-step process'' of section 3001(a)
and (b) for hazardous waste identification. It is true that the statute
requires EPA to promulgate criteria for hazardous waste identification
(section 3001(a)) and, based on those criteria, to identify
characteristics of hazardous waste and to list hazardous wastes
(section 3001(b)). In general, EPA has done this in separate steps. See
40 CFR part 261, Subpart B (criteria) and Subparts C and D
(characteristics and lists). However, the statute does not preclude EPA
from creating self-implementing criteria, as EPA has done with the
mixture and derived-from rules. EPA does not interpret 3001(b) as
imposing an obligation on EPA to undertake a separate waste
identification rulemaking step following the development of self-
implementing criteria. Alternatively, the mixture and derived-from
rules could be viewed as a simultaneous exercise of EPA's 3001(a) and
3001(b) authority. Nothing in the statute prevents EPA from
simultaneously, in combined regulations, establishing the criteria for
waste identification, and identifying the characteristics of hazardous
waste and listing waste.
We agree with commenters who point out that EPA has not used the
class listing process under 40 CFR 261.11(b) to list mixtures and
derived-from wastes as a class. However EPA does not agree that
mixtures and derivatives must be individually listed or identified as
hazardous wastes before being subject to Subtitle C jurisdiction. As
previously stated, mixtures and derivatives are identified as hazardous
waste by virtue of containing or coming from wastes that have been
listed pursuant to the criteria in 40 CFR 261.11. EPA cannot presume
that the hazardous constituents that are the basis of the original
listing are always eliminated or rendered nontoxic simply because a
waste is mixed with other wastes or managed in some fashion.
(3)(a) Comment: EPA Has No Authority Under Sections 3002-3004 of RCRA
To Designate Wastes as Hazardous
Several commenters from industries, industry associations, utility
companies, utility company associations and waste management companies
also disagreed with EPA's claim of authority under sections 3002-3004
of RCRA. They argued that these sections of RCRA provide for hazardous
waste management standards for generators, transporters, and treatment,
storage and disposal facilities, not for identifying hazardous wastes.
Instead, that role is unambiguously carried out by section 3001. 42
U.S.C. 6921, and in previous promulgations and in litigation, EPA
relied primarily on section 3001 to justify the mixture and derived-
from rules.
(3)(b) EPA Response
In citing sections 3002-3004 in the discussion of EPA's statutory
authority, we did not intend to imply that these sections by themselves
provide statutory authority for the mixture and derived-from rules.
Rather, our intent was to explain that these sections inform the
process of identifying hazardous waste under section 3001 because the
purpose of identifying a solid waste as hazardous is to ensure that it
is managed properly.
The statute directs EPA to regulate hazardous waste generators
(section 3002(a)), hazardous waste transporters (section 3003(a)), and
hazardous waste treatment, storage, and disposal facilities (section
3004(a)) ``as necessary to protect human health and the environment.''
It is our view that this informs the decision of when waste should be
identified as hazardous and therefore subject to the regulatory
requirements of Subtitle C . In deciding whether to identify a waste as
hazardous under section 3001, EPA considers whether Subtitle C controls
on the waste are necessary to protect human health and the environment.
We have therefore consistently interpreted section 3001 to give us
broad flexibility in fashioning criteria for hazardous wastes to enter
or exit the Subtitle C regulatory system. See, Military Toxics Project
v. EPA, 146 F.3d 948, 958 (D.C. Cir. 1998). As discussed above, this
interpretation is consistent with the statutory purpose of protecting
human health and environment by establishing a comprehensive hazardous
waste regulatory program. (RCRA sections 1002, 1003).
In addition to providing the context in which the determination of
whether a waste ``should be subject to the requirements of Subtitle
C,'' sections 3002-3004 allow us to continue to impose requirements on
waste handlers until wastes have ``cease[d]
to pose a hazard to the
public.'' Shell Oil Co. v. EPA, 959 F.2d 741, 754 (D.C. Cir. 1991). See
also Chemical Manufacturers Assoc. v. EPA, 919 F.2d 158, 162-65 (D.C.
Cir. 1990) (EPA may regulate the disposal of nonhazardous wastes in a
hazardous waste impoundment under section 3004) and Chemical Waste
Management, Inc. v. EPA, 976 F.2d 2, 8, 13-14 (D.C. Cir. 1992) (EPA may
require further treatment of wastes under section 3004 even though they
cease to exhibit a hazardous characteristic). Without the mixture and
derived-from rules, EPA could not effectively carry out its obligation
under sections 3002-3004 to protect human health and the environment.
Thus, in addition to the specific authority of section 3001, the
mixture and derived-from rules are authorized under section 2002(a)(1),
which empowers the Administrator to ``prescribe * * * such regulations
as are necessary to carry out his functions'' under RCRA.

C. Regulatory Cost of the Mixture and Derived-From Rules

(1) Summary of Comments on the Regulatory Cost of the Mixture and
Derived-From Rules
EPA received comments from five commenters in response to both the
1995 and the 1999 HWIR proposals concerning the regulatory cost of the
mixture and derived-from rules. Of those comments, four were received
from industries, and one was from an industry association. The
commenters generally argued that the rules constituted over-regulation
of low-risk wastes causing high costs and heavy burdens with little
benefit to human health and the environment. A summary of the specific
issues raised by commenters is provided below.
One industry commenter argued that the rules have added significant
costs to the operation of manufacturing facilities throughout the
nation, while providing insignificant benefits to human health and the
environment. The commenter noted that the generation of large
quantities of hazardous wastewaters based solely on the practice of
efficient, centralized wastewater treatment has led the company to
evaluate the segregation of hazardous and non-hazardous wastewaters, to
prevent the attachment of a ``hazardous'' label to those non-hazardous
wastewaters. Such a segregation would require a second treatment
facility and much re-piping,

[[Page 27280]]

with the net result that millions of dollars would be expended and
there would be no improvement in the wastewaters ultimately discharged
to the environment through two, rather than one, discharge points. All
that would be achieved is an apparent reduction in hazardous waste
generation which does not, in reality, represent a decrease in waste
generation, treatment or discharge, but rather a reporting game and
artificial waste minimization driven by EPA requirements. It is this
kind of ``game'' that compromises the credibility of both EPA and the
regulated community and imposes a significant burden on the regulated
community.
Another industry commenter noted that managing the residuals as if
they were listed hazardous waste was significantly more expensive than
managing the waste in accordance with solid waste regulations. For
example, in 1995 transportation and disposal of ash from a hazardous
solids incinerator cost approximately $185,000. In comparison, the ash
could be managed in a state permitted Subtitle D landfill as non-
hazardous waste for about $25,000. Another industry stated that these
rules have resulted in significant expense that has diverted resources
away from greater environmental opportunities.
One association commenter stated that the rules frequently cause
waste codes to be carried through and applied to wastes that are
fundamentally different from the original waste considered in the
development of the listing classification. The commenter noted that
there are many instances in which the risk associated with the original
listed waste simply does not carry through in the same way, and that
the composition and nature of any risk posed by these materials often
bears little or no relationship to the original listed waste. Specific
examples cited include (1) Wastewaters where most of the arsenic has
been precipitated and removed, (2) debris from hazardous waste
refractories undergoing repair, and (3) wastewaters that had received
ethylene oxide as part of an emergency incident. The costs and impacts
of this automatic waste-code carry-through are quite significant. Much
of the industry operates through smaller ``batch'' processes, while the
regulations are crafted for a continuous manufacturing process. And, in
many operations, delisting the mixture is not an option, as the
facility can only store the mixture on-site for 90 days, which is not
enough time for a delisting.
An industry association also stated that the costs imposed by the
rules from a number of member companies are easy to identify: on-site
storage costs, paperwork and administrative costs, higher shipping and
transportation costs, and higher treatment, storage and disposal costs.
And, these are the same types of costs analyzed and tallied by EPA in
documenting the cost savings it attributes to the modified exemption
for hazardous wastes listed solely for a characteristic of
ignitability, corrosivity and/or reactivity. The commenter also stated
that another significant cost of the current regulatory regime was the
extra time and effort required to evaluate and apply the rules in the
real world. Even after 20 years, facilities still have difficulty
evaluating when, whether and why certain waste streams must be managed
as Subtitle C hazardous wastes under this approach.
2. Response to Comments on Regulatory Cost of the Mixture and Derived-
From Rules
We agree that the mixture and derived-from rules have captured
wastes that could safely be managed outside of RCRA Subtitle C
regulation. As explained below, we have addressed specific cases of
such over-regulation through targeted rulemaking in the past, and we
will continue to explore options for exempting wastes that do not
warrant Subtitle C regulation. However, we do not agree that hazardous
waste regulation of mixture and derived-from waste provides no
additional protection of human health and the environment. For example,
as we discuss in Section VII.A, wastewaters prior to discharge may
contain constituents at levels that could pose unacceptable risks if
they are mismanaged. Furthermore, the mixture and derived-from rules
address cross-media transfer of persistent hazardous chemicals from the
wastewater to the treatment sludge.
One way of reducing the regulatory burden available to individual
waste generators is the delisting process. Generators have the option
of petitioning the Agency under 40 CFR 260.20 and 40 CFR 260.22 to
exclude their wastes from the lists of hazardous wastes in subpart D of
part 261 if they believe those wastes no longer pose risk to human
health and the environment. Since the delisting program was delegated
to the EPA Regions on October 10, 1995, a number of innovations have
been adopted that have greatly improved the efficiency and
effectiveness of the delisting program. In particular, EPA Region VI's
award-winning program has created a process that produces a decision
within an average of 180 days, provides a streamlined application
checklist, proactively coordinates with State personnel, and includes a
user-friendly, stand-alone software program that produces an updated,
state-of-the art assessment of risks associated with delisting a
petitioned waste. In addition, EPA and the applicant now work together
to develop an initial application that can be approved without the need
for major revisions, which is a major factor in reducing the processing
time. EPA will continue these efforts and others in order to keep
improving the delisting process. Since 1980, EPA has excluded an
estimated 45 million tons of waste, resulting in an estimated
cumulative cost savings between $1.1 billion and $1.3 billion (in 1999
dollars). In 2000 alone, we estimate cost savings of approximately
$105.4 million.\12\
---------------------------------------------------------------------------

\12\ U.S. EPA Evaluation of Hazardous Waste Delisting Program,
December 2000.
---------------------------------------------------------------------------

In addition, EPA has taken steps since the mixture and derived-from
rules were promulgated in 1980 to further reduce the scope, and
therefore the cost, of these rules when appropriate. As one commenter
to the 1999 proposal pointed out, eighteen months after the original
mixture and derived from rules, EPA promulgated the first of several
exclusions for low-risk waste from the definition of hazardous waste.
Over the past twenty years, EPA has developed exclusions and/or
tailored regulations to reduce the regulatory cost for more than a
dozen types of hazardous waste mixtures and residuals. (see table
below)

[[Page 27281]]

Revisions to 40 CFR 261.3 That Have Reduced the Regulatory Cost of the
Mixture and Derived-From Rules
------------------------------------------------------------------------
Hazardous waste(s) Year promulgated
CFR citation affected (FR citation)
------------------------------------------------------------------------
40 CFR 261.3(a)(2)(iv)(A) and Certain solvents 1981 (46 FR 56582)
(B). managed in
wastewater
treatment systems.
40 CFR 261.3(a)(2)(iv)(C)....... Certain petroleum 1981 (46 FR 56582)
wastes discharged Additional wastes
to the refinery added in 1998 (63
oil recovery FR 42184)
sewer.
40 CFR 261.3(a)(2)(iv)(D)....... De minimis losses 1981 (46 FR 56582)
of commercial
chemical product.
40 CFR 261.3(a)(2)(iv)(E)....... Certain laboratory 1981 (46 FR 56582)
wastewaters.
40 CFR 261.3(a)(2)(iv)(F) and Certain carbamate 1995 (60 FR 7848)
(G). wastewaters.
40 CFR 261.3(a)(2)(v)........... Used oil.......... 1992 (57 FR 41611)
40 CFR 261.3(c)(2)(ii)(A)....... Certain waste 1984 (49 FR 23284)
pickle liquor
sludges.
40 CFR 261.39(c)(2)(ii)(B)...... Wastes derived 1987 (52 FR 11819)
from burning
certain oil-
bearing wastes as
fuel.
40 CFR 261.3(c)(2)(ii)(C)....... Wastes derived 1992 (57 FR 37263)
from high
temperature
metals recovery
of certain
hazardous wastes.
40 CFR 261.3(c)(2)(ii)(D)....... Certain types of 1995 (60 FR 7848)
biological
treatment sludge.
40 CFR 261.3(c)(2)(ii)(E)....... Certain types of 1998 (63 FR 42184)
catalyst inert
support media.
40 CFR 261.3(f)................. Certain types of 1992 (57 FR 37264)
debris
contaminated with
a hazardous waste.
------------------------------------------------------------------------

In each of these revisions to 40 CFR 261.3, EPA considered the
case-specific circumstances of the waste affected and, through the
formal rulemaking process, determined that these wastes merited special
consideration under the hazardous waste identification rules. In many
cases, these wastes still warranted enough concern to impose specific
management and other implementation requirements. For example, the
solvent exclusions in 40 CFR 261.3(a)(2)(iv)(A) and (B) require that
(1) these wastes are managed in a system the discharge of which is
subject to regulation under either section 402 or section 307(b) of the
Clean Water Act, and (2) the total weekly usage of these solvents
divided by the average weekly flow of the wastewater into the treatment
works would not exceed a specific regulatory level (either 1 ppm or 25
ppm).
Under today's final rule, EPA has continued the effort to reduce
the burden from the mixture and derived-from rules where appropriate by
excluding wastes listed solely for ignitability, corrosivity, and/or
reactivity, once the waste no longer exhibits any of the hazardous
waste characteristics (40 CFR 261.3(g)). We are also finalizing a
conditional exemption for mixed waste from the mixture and derived-from
rules, provided the mixed waste is handled in accordance with 40 CFR
part 266, Subpart N. (40 CFR 261.3(h))
Finally, over the past twenty years EPA has promulgated numerous
rules establishing exclusions or conditional exemptions from the solid
and hazardous waste definitions, and from regulatory requirements for
particular wastes and management practices. These exemptions are part
of EPA's overall effort to avoid unnecessary regulation of waste.
EPA plans to continue work on other types of hazardous waste
exemptions, including the additional targeted exemptions for certain
categories of wastes and management practices, and the concentration-
based exemptions (HWIR exemption) discussed in the November 19, 1999
proposal. We also plan to continue on-going efforts to streamline the
existing delisting program.
In regard to the specific examples of over-regulation claimed by
one commenter (see comment # WH2P-00035, page 10), it is difficult for
EPA to fully evaluate these cases without more specific data. For
example, in the case of wastewaters where most of the arsenic has been
precipitated and removed, it is not clear whether there are any other
hazardous constituents of concern in the treatment sludge, and whether
the residual arsenic might still pose a risk (depending on waste volume
and management method). In the case of contaminated bricks from
hazardous waste refractories undergoing repair, it would appear that
the exclusion for debris [40 CFR 261.3(f)]
could address this concern.
Finally, for wastewaters that had received ethylene oxide as part of an
emergency incident, while it is true that ethylene oxide eventually
breaks down to ethylene glycol, this reaction is not instantaneous.
When released into water, ethylene oxide will primarily be lost by
three processes: volatilization, hydrolysis and biodegradation. The
half-lives of these reactions range from a few hours to up to 20
days.\13\ Ethylene oxide itself is toxic, and if these wastewaters were
automatically considered non-hazardous, they could present a
substantial risk, depending on actual concentrations and exposure
patterns. Both low level chronic exposure and acute high levels of
ethylene oxide can lead to a broad spectrum of neurological effects.
Also, inhalation studies have shown that exposure to ethylene oxide can
result in a wide range of carcinogenic effects, and NIOSH considers
ethylene oxide to be a potential occupational carcinogen.\14\
Therefore, EPA does not agree that such a mixture should be
automatically excluded from hazardous waste regulation. More
importantly, since the purpose of this rulemaking is not to evaluate
individual wastestreams, EPA does not believe this example demonstrates
that the mixture and derived-from rules themselves are unnecessary as a
general matter.
---------------------------------------------------------------------------

\13\ Agency for Toxic Substances and Disease Registry. (1990).
Draft Toxicological Profile for Ethylene Oxide.
\14\ National Institute for Occupational Safety and Health.
(1989). Ethylene Oxide Sterilizers in Health Care Facilities,
Engineering Controls and Work Place Practices. DHHS (NIOSH) No. 89-
115.
---------------------------------------------------------------------------

EPA understands that the RCRA regulations, in particular the waste
identification regulations, can be difficult to understand. We have
attempted to use plain language in drafting today's revised regulatory
language, and will continue to make regulatory language more accessible
to readers in the future. In addition, we believe that the mixture and
derived-from rules are more straightforward than the alternative of
having to evaluate each combination and permutation of

[[Page 27282]]

listed waste on a case-by-case basis. We believe this alternative would
create uncertainty for the regulated community, state agencies, the
public, and the courts, as various stakeholders press conflicting views
as to whether a particular waste does or does not continue to meet the
listing description.

VIII. What Were the Major Comments on the Revision to 40 CFR 261.3
To Exclude Wastes Listed Solely for Ignitability, Corrosivity, and/
or Reactivity, and How Has EPA Responded to Them?

Most commenters generally supported revisions to 40 CFR 261.3 to
various degrees. Chemical-producing industries as well as Federal
government agencies who commented were unanimous in support. Most
states supported the proposed revisions to the rules to varying
degrees. Below are summaries of the major comment issue areas for this
proposed exclusion. For more detailed comment responses, please see
Hazardous Waste Identification Rule: Revisions to the Mixture and
Derived-From Rules Response to Comments Document.

A. Eligibility of Waste Listed for the Toxicity Characteristic

(1) Comments on Eligibility of Waste Listed for the Toxicity
Characteristic
EPA received comments from 12 commenters in response to both the
1995 and the 1999 proposals concerning inclusion of wastes listed
solely for the toxicity characteristic in the expanded exclusion. Of
those comments, four were received from industry, two were from
industry associations, four were from utility companies or utility
company associations, one was from a Federal Government Agency, and one
was from an industry consultant. A summary of the specific issues
raised by commenters is provided below.
While supporting the proposed exclusion, these commenters urged EPA
to modify the proposal so the exclusion would apply to wastes listed
due to any of the four characteristics, including the toxicity
characteristic. Commenters asserted that it was not logical to limit
the exclusion for derived-from wastes to three of the four
characteristics, regardless of the fact that no listed wastes are
listed solely on the basis of the toxicity characteristic. One
commenter stated that it appears as if EPA suspects that wastes
containing TC constituents below the toxicity characteristic are not
really safe. A few commenters noted that in the future, wastes that may
be listed solely for the toxicity characteristic should be eligible for
the exclusion. Another commenter also noted that the proposed
regulatory language does not provide for any additional hazardous waste
characteristics that might be promulgated in the future. Commenters
suggested that EPA replace references to ignitability, corrosivity, and
reactivity in the proposed regulatory language for 40 CFR 261.3(g) with
references to any characteristic of hazardous waste identified in
subpart C, reflecting the approach and language used in the current
mixture rule.
Several commenters noted that EPA did not offer an explanation for
omitting wastes listed solely because they exhibit the characteristic
of toxicity from eligibility for the proposed exclusions that would be
granted by 40 CFR 261.3(g). EPA did explain that, since no listings to
date have been based on the toxicity characteristic, EPA was proposing
to limit the new revision to the derived-from rule to wastes listed
because they exhibit only the characteristics of ignitability,
corrosivity, or reactivity. However, the commenters believed it is
confusing to give no explanation for proposing the elimination of an
existing exclusion from the mixture rule, even if no wastes now exist
that are eligible for the exclusion. Therefore, the commenters
recommended that the preamble for the final rule contain such an
explanation.
(2) EPA Response to Comments on the Eligibility of Waste Listed for the
Toxicity Characteristic
EPA does not agree that wastes listed solely for the toxicity
characteristic (TC) should be eligible for the exclusion. As we
discussed in the 1995 HWIR proposal, wastes may still pose some risk
concerns even when TC constituents are present below TC levels (60 FR
66369, December 21, 1995).
The hazards that the TC regulation addresses, carcinogenicity and
chronic chemical toxicity via contaminated groundwater/drinking water,
have fewer clear thresholds than the other characteristics. Wastes that
exhibit the characteristics of ignitability, corrosivity or reactivity
typically pose acute hazards which can be addressed by application of
appropriate treatment to decharacterize the waste. For example,
ignitable liquid waste or waste chemical oxidizers can be treated by
combustion, and the ash treatment residue poses no ignitability threat
to landfills. Similarly, strong acid or basic wastes, if effectively
neutralized, generate residues that pose no threat of skin damage.
Waste explosives or highly reactive chemicals that are denatured or
reacted-out under controlled conditions also generate residues that
pose no explosion or reaction threat.
The TC chemicals have less clear thresholds below which they pose
little or no hazard for several reasons. Toxic chemicals pose a risk
that is typically dependent on a range of factors, and assessment of
hazard from toxicity is much more complex, and involves many more
variables, than assessment of hazard from the other three
characteristics. A waste that does not exhibit the toxicity
characteristic for a particular chemical may nonetheless pose a
substantial hazard depending on such factors as the volume of the
waste, the exposure route being assessed, and the amount of dilution
and attenuation that is assumed prior to exposure. These factors, along
with others, are taken into account in making hazardous waste listing
determinations based on toxicity. See 40 CFR 261.11((a)(3). In
addition, as persistent chemicals move through the environment, they
can accumulate, posing long-term chronic risks even at levels below
those set for the toxicity characteristic. Thus, the toxicity
characteristic is not designed to capture all of the wastes that might
present a substantial hazard for the TC constituents. Rather, the TC is
designed to capture wastes that may pose a substantial hazard, without
the need to conduct a waste-specific risk assessment. In fact, when EPA
promulgated the TC regulation, we stated that the regulation is
intended to identify ``* * * broad classes of wastes which are clearly
hazardous * * *''. We also noted that ``wastes that do not exhibit the
hazardous waste characteristics are not necessarily non-hazardous.''
(55 FR 11799, March 29, 1990). In identifying TC hazardous wastes as
``clearly hazardous'' the agency was identifying a universe of wastes
that it believed may pose high enough risk so as to always require
classification as hazardous. In noting that non-TC wastes are not
necessarily non-hazardous, the agency both recognized the non-threshold
(i.e., continuous) nature of TC constituent risks, and recognized that
wastes falling just below the TC values may pose risks that are just
below a ``clearly hazardous'' designation, and which may sometimes
warrant classification as hazardous. EPA has in fact listed wastes
based on toxicity where the waste did not fail the TCLP for the
constituent of concern. (see, for example, the final petroleum waste
listing, 63 FR 42154 (August 6, 1998)).
EPA's decision to not exclude wastes listed solely for the TC could
potentially affect the regulation of certain inorganic wastes that EPA
has recently proposed

[[Page 27283]]

to list as hazardous. (65 FR 55684, September 14, 2000). The issue had
been purely theoretical before that point because no waste had ever
been listed for the TC. In the inorganics listing determination
proposal, however, EPA proposed to list baghouse filters from antimony
oxide production for the TC. Despite the fact these wastes fail the TC
for lead and arsenic, they are not always being managed as Subtitle C
hazardous waste, nor are these wastes always treated to the appropriate
LDR standards. By listing them, we would clarify their regulatory
status. In the preamble to the inorganics listing proposal, EPA noted
that proposed revisions to the mixture and derived-from rules did not
include an exclusion for wastes listed for the TC (65 FR 55705). EPA
did not receive any public comments in response to this discussion in
the Inorganics Listing proposal.

B. Toxicity of Wastes Listed for Ignitability, Corrosivity, and/or
Reactivity

(1) Comments on Toxicity of Wastes Listed for Ignitability,
Corrosivity, and/or Reactivity
EPA received two comments in response to the 1999 proposal
concerning the potential toxicity of waste under the proposed expanded
exclusion to the mixture and derived-from rules. One was from a waste
management association and one from a State agency. A summary of the
specific issues raised by commenters is provided below.
The commenters believed that EPA must evaluate the properties
carefully, especially the toxicity, of the 29 compounds proposed to be
excluded. They assert that some of these wastes are acutely hazardous
and merit a thorough review to ensure that the exclusion is
appropriate. The waste management association noted that EPA had not
performed an evaluation of the negative environmental impact associated
with eliminating these codes. Ignitable, corrosive, and reactive wastes
could contain substantial levels of toxic constituents that could be
low enough not to exhibit a characteristic of ignitability, corrosivity
or reactivity, yet high enough to cause environmental damage. One
damage case or Superfund site can cause damages far in excess of the
$4.6 million estimated savings predicted by EPA. The waste management
association further argued that EPA's Hazardous Waste Characteristics
Scoping Study (Nov. 15, 1996) identified numerous gaps in the current
RCRA identification of characteristic wastes. The commenter believed
that gaps were so serious that EPA should not be proposing to eliminate
any listing that was based on a characteristic until the deficiencies
identified in the 1996 Scoping Study were addressed fully. Also, EPA
must not eliminate any listing once the characteristic is removed,
because the underlying hazardous constituent still represents a
substantial threat even after LDR treatment.
(2) EPA Response to Comments on Toxicity of Wastes Listed for
Ignitability, Corrosivity, and/or Reactivity
EPA continues to believe that wastes that were listed only for the
characteristics of ignitability, corrosivity, and reactivity should
become excluded once they no longer exhibit any characteristic,
including the toxicity characteristic. While it is true that these
wastes could contain constituents that were not considered in the
original listing determination, EPA does not believe this possibility,
without information demonstrating some particularized basis for
concern, warrants continued regulation of the waste under Subtitle C
once it is decharacterized. This is because of the unique nature of
listings based on the three characteristics in question. (See the
discussion, in Section VIII.A. above, regarding the differences between
wastes listed for the toxicity characteristic and wastes listed for the
characteristics of ignitability, corrosivity and reactivity). These
listings are unlike toxicity-based listings, which involve development
of detailed risk assessments and consideration of a range of technical
factors. See 40 CFR 261.11(a)(3). In contrast, the basis for listings
based on one of these characteristics is simply that the waste exhibits
the relevant characteristic (see 40 CFR 261.11(a)(1)).
Listings that are based on 40 CFR 261.11(a) criteria increase the
clarity and certainty of the applicability of the Subtitle C system to
these wastes. By listing the waste, EPA clarifies that it is hazardous
without the need for a site-by-site demonstration that the waste in
fact exhibits the characteristic, thereby simplifying implementation
and enforcement regarding these wastes. EPA does not believe these
listings should alter the basic principle that a characteristic waste
should not be regulated as hazardous if it no longer exhibits the
characteristic. Consistent with this approach, EPA provided in 1981 an
exemption from the mixture rule for wastes listed for one of these
characteristics that no longer exhibits the characteristic (see 46 FR
56582, November 17, 1981). Today's rule provides a conforming change to
the derived-from rule, which, because the 1981 rule only focused on
mixtures, does not currently contain a comparable exemption. (see 60 FR
66349, December 21, 1995). The same rationale also supports the
inclusion of as-generated waste in today's rule (although, since these
wastes were listed solely on the basis of exhibiting a characteristic,
EPA expects these wastes to exhibit the characteristic at the point of
generation). Thus, EPA does not believe that the possibility that these
wastes may contain additional hazardous constituents not considered in
the original listing justifies continued regulation of the waste.
As stated earlier, EPA already excludes mixtures of these kinds of
wastes, once the basis for listing these wastes has been removed. In
addition, unlisted characteristic waste becomes non-hazardous when it
ceases to be characteristic. Expanding the exclusion to non-mixtures
that similarly do not exhibit the characteristic (particularly
treatment residuals) would still be protective of human health and the
environment. If there is any information that indicates that the
original listing determination should have been based on toxicity
risks, then the proper remedy is to amend the basis for listing the
waste . The public can petition EPA to reconsider the basis for listing
any such waste .
In regard to the toxicity of the listed chemicals themselves, EPA
has examined the most recent toxicity data in IRIS concerning the
chemicals in the 29 wastes listed solely for a characteristic, and does
not believe these chemicals present a particular basis for concern. We
found that fourteen of the chemicals have RfD's or RfC's available in
IRIS. (This includes the eight F003 solvents discussed below--see
Section VIII.C. of the preamble). EPA used these RfCs and RfDs to
calculate conservative screening-level health-based numbers (HBN) for
those chemicals, and compared them to the relevant Universal Treatment
Standards (UTS) these chemicals would need to meet under Land Disposal
Restrictions, in those cases in which numerical standards were
available. For most of those chemicals, the relevant UTS standards are
much lower than the conservative health-based numbers calculated for
water and soil ingestion pathways. As discussed in Section VIII.C
below, the level for one of the chemicals, n-butyl alcohol, is not
significantly higher. Therefore EPA believes that excluding wastes that
have

[[Page 27284]]

been listed solely for a characteristic of ignitability, corrosivity,
or reactivity, when they have been decharacterized (i.e., exhibit none
of the four hazardous waste characteristics), is protective of human
health and the environment. However, in the future, if additional
information becomes available, we may decide to reconsider the basis of
listing for one or more of these wastes.

C. Eligibility of F003 Solvents for This Exclusion

(1) Comments on Eligibility of F003 Solvents for This Exclusion
EPA received comments from 17 commenters in response to the 1995
and 1999 proposals concerning the inclusion of F003 solvents in the
expanded exclusion to the mixture and derived-from rules. Of those
comments, five were from State Agencies, three were from utility
companies or associations, four were from industries, two were from
Federal Agencies, two were from waste management associations, and one
was from an industry association. A summary of the specific issues
raised by commenters is provided below.
About two-thirds of the commenters supported including F003 wastes
in the proposed exclusion. However, one industry noted that this
proposed revision would have little effect beyond eliminating the
derived-from rule for a small number of wastes. Many commenters noted
that if the solvent contained, before use, one or more of the toxic
solvents specifically listed in F001, F002, F004, or F005, at 10
percent or more by volume, it would be regulated as that waste code.
Therefore a blanket exclusion for all categories of F003 is appropriate
because toxics, when present, will be addressed under other applicable
waste codes. One State and two Federal commenters stated that any toxic
solvents contained in an F003 spent solvent blend would not escape
proper treatment because of the land disposal restrictions (LDR)
program. They also noted that solvent mixtures/blends meeting the F003
listing description and containing a certain percentage of toxic
solvents also will carry the waste code F001, F002, F004 and/or F005
and therefore, be subject to treatment requirements under the LDR
program.
Four commenters did not support including F003 in the proposed
exclusion. They argued that the listing description for F003 contains a
reference to other solvent wastes (F001, F002, F004, or F005) that are
listed for toxicity. Therefore, ignitability was not the only
characteristic of concern. In addition, certain F003 solvents
themselves may also be toxic, upon consideration of new data developed
since 1985. Specifically, the commenter cited a National Toxicology
Program, National Institutes of Environmental Health Sciences,
Management Statistics Report dated January, 1999 on the carcinogenicity
of ethylbenzene (an F003 waste).
In addition, one State noted that in the April 30, 1992 proposal to
revise the Hazardous Waste Identification Rule, EPA was considering a
separate rulemaking to modify the basis for listing F003 and other
wastes listed solely for a characteristic because of concerns about
toxicity and/or carcinogenicity. If the chemicals in these wastes are
either toxic or carcinogenic according to EPA's own determinations,
they should be identified as such in 40 CFR part 261, subpart D.
Commenters also argued that F003 wastes ``often'' contain toxic
constituents other than the solvents themselves. One commenter noted
that EPA states in 50 FR 53317 (December 31, 1985) ``In fact, solvents
become spent when they have become contaminated with other materials,
(i.e., heavy metals or toxic organic compounds) and must be disposed,
reprocessed or reclaimed.'' EPA further states `` * * * since spent
solvents reasonably are likely to contain other toxicants at levels of
regulatory concern, and since we have not evaluated those wastes for
these toxicants, we believe it inappropriate to remove these solvents
from the hazardous waste list.'' In addition, the waste management
association commenter argued that as part of the economic impact
analysis associated with the 1999 HWIR proposal, there have been 51
different hazardous constituents associated with the F003 waste code.
The commenter believed that if EPA lacked toxicological data on any of
these constituents, then F003 could not be eligible for the exclusion
once the ignitability characteristic was removed and the waste
exhibited no other hazardous waste characteristics.
(2) Response to Comments on Eligibility of F003 Solvents for This
Exclusion
EPA agrees with those comments that support F003 waste remaining
eligible for this exclusion. Because F003 waste that contains 10% or
more of the other F-listed solvents (F001, F002, F004, and F005) would
also bear those waste codes, such wastes would not be eligible for the
exclusion. The exclusions applies only to F003 wastes that do not
contain 10% or more of these other solvents.
EPA is aware of the recent carcinogenicity study (referenced in the
public comments) that was performed by the National Toxicology Program
on ethylbenzene. Ethylbenzene is included in the Agency's on-going
Integrated Risk Information System (IRIS) project (63 FR 68285,
December 10, 1998). A focus of the IRIS project is to update selected
chemical assessments by incorporating new scientific information and
methods. The IRIS project consists of a process that determines the
Agency's consensus position on the potential adverse health effects
that may result from chronic or lifetime exposures to environmental
contaminants. The carcinogenicity study on ethylbenzene, together with
any other recent toxicological data, will be evaluated by the Agency as
part of this process. Until that evaluation is completed, EPA does not
believe it is appropriate to draw regulatory conclusions based on the
referenced study.
With respect to the commenters' more generalized concerns about the
possibility of toxic constituents in F003 waste, as explained above,
EPA does not believe this possibility justifies the continued
regulation of a waste that was listed for the sole reason that it is
ignitable, where the waste is no longer ignitable and exhibits no other
hazardous waste characteristic. F003 waste is unique among the listed
solvents: the other listed solvents were listed on the basis of
toxicity. F005 solvents were listed for both ignitability and toxicity.
In fact, EPA decided to move two listed solvents (methanol and methyl
isobutyl ketone) that were originally proposed to be regulated under
the F005 listing to the F003 listing because EPA determined that they
did not pose a significant toxicity risk, although they are highly
flammable (45 FR 74884, November 12, 1980).
Since then, EPA has analyzed the toxicity risks that might be posed
by F003 solvents when de-characterized. The Agency has researched the
most recent data concerning the F003 solvents in the IRIS data base.
None of the solvents in the listing are classified as carcinogens, but
eight of the nine possess reference concentrations (RfC) and oral
reference doses (RfD) for non-cancer risk. EPA used these RfCs and RfDs
to calculate conservative screening-level health-based numbers (HBN)
for those chemicals, and compared them to the relevant Universal
Treatment Standards (UTS) these chemicals would need to meet under Land
Disposal Restrictions. For seven of the eight chemicals (including
ethylbenzene) the relevant UTS standards are much lower than the

[[Page 27285]]

conservative health-based numbers calculated for water and soil
ingestion pathways. The health-based number for the remaining chemical,
n-butyl alcohol, is only slightly lower than the UTS standard (3.3 mg/L
water ingestion HBN vs 5.6 mg/L wastewater UTS).\15\ Given the fact
that the health-based numbers are conservative screening numbers, EPA
does not believe this difference is of concern. Therefore EPA remains
confident that excluding ignitable F003 solvents, when they have been
decharacterized, is protective of human health and the environment.
---------------------------------------------------------------------------

\15\ For the water ingestion pathway, EPA assumed a 71.8 kg
adult with a 2.3 L/day intake (90th percentile), 350 days/yr
frequency. For the soil ingestion pathway, EPA assumed a 16.6 kg
child with 400 mg/day intake (upper percentile), 350 days/yr
frequency. For more information, please see U.S. EPA Analysis of
Chemicals in Wastes Listed for Ignitability, Corrosivity, or
Reactivity memorandum to the docket from David Cozzie, Office of
Solid Waste, November 22, 2000.
---------------------------------------------------------------------------

Commenters also claimed that F003 solvents, because they are
general use solvents, can carry with them various constituents other
than the solvents themselves, and that this was a reason for listing
the F003 solvents in the first place (see 50 FR 53317, December 31,
1985). EPA acknowledges that in the 1985 solvents final rule, we noted
that additional toxic contaminants would likely be present in the spent
solvent. We also stated, however, that we did not evaluate F003 wastes
for other toxic constituents that could be present at levels of
regulatory concern. Therefore, toxicity was a not a basis for listing
F003 waste.
When the F003 listing was finalized in 1985, because it was listed
solely for ignitability, mixtures of F003 waste and solid waste were
eligible for the exemption for mixtures of waste listed for a
characteristic that no longer exhibit any characteristic of hazardous
waste. Expanding the exclusion to non-mixtures that similarly do not
exhibit any characteristic would still be protective of human health
and the environment. We do not think it makes sense to continue the
anomaly of retaining regulation for non-mixtures of F003 wastes based
on toxicity concerns when we have no record basis to support regulation
for toxicity. Today's exclusion is also consistent with the approach
taken in EPA's decision not to list 14 spent solvent wastes, in which
EPA declined to focus on any toxic constituents other than those in the
solvents themselves, despite the likelihood of other toxic constituents
in the spent solvent waste. (63 FR 64372 (Nov. 19, 1998).\16\
---------------------------------------------------------------------------

\16\ EPA's determination was upheld at EDF v. EPA, 210 F.3d 396
(D.C. Cir. 2000).
---------------------------------------------------------------------------

D. Applicability of Land Disposal Restrictions (LDRs) to Excluded
Wastes

(1) Comments on Applicability of Land Disposal Restrictions (LDRs) to
Excluded Wastes
EPA received comments from 20 commenters in response to both the
1995 and the 1999 proposals concerning the applicability of LDRs to
excluded wastes. Of those comments, eight were received from
industries, four were from industry associations, two were from Federal
Government Agencies, two were from State Agencies, one was from a
consultant, one was from a waste management association, one was from a
waste management company, and one was from an individual commenter. A
summary of the specific issues raised by commenters is provided below.
Several commenters supported the EPA's proposed revision to the
mixture and derived-from rules provided that the excluded waste meets
land disposal restriction (LDR) requirements. One industry association
noted that LDR standards assure that the waste is well treated. One
State Agency believed that having similar wastestreams comply with the
same requirements will achieve regulatory consistency as well as
protection of human health and the environment.
Several commenters supported EPA's proposed revisions to the rules
but did not support meeting LDR requirements. One industry commenter
stated that applying LDRs to a waste which is excluded because it no
longer meets the hazardous waste criteria is unnecessarily burdensome,
costly and is a contradiction of the RCRA program requirements.
Two commenters said that the applicability of LDRs to both
wastewater and nonwastewater forms of wastes should be both clear and
identical. They felt that there is no justification for managing these
wastes inconsistently.
Several of the comments dealt with whether excluded waste would
need to be treated to meet LDR treatment standards for all underlying
hazardous constituents (UHCs) under the existing rules. They felt that
EPA should clarify that it did not intend to revise application of the
current LDR rules without any discussion of why such a change would be
necessary. One commenter emphasized that EPA has not provided a
compelling case for requiring testing for UHCs or a clear methodology
for implementing the requirements that are proposed. They stated that
since these wastes are listed, generators have not been required to
obtain information on underlying hazardous constituents. Obtaining this
information would pose an undue burden for the generator, and they
requested clarification on who would be responsible for verifying
whether the waste in question meets the condition of the exclusion: the
generator or the facility receiving the excluded waste.
Two industry association commenters referenced the Land Disposal
Program Flexibility Act of 1996 (LDPFA) and its relationship to the
proposed exclusion. Under LDPFA, solid wastes identified as hazardous
based solely on a characteristic, are not prohibited wastes under the
Land Disposal Restrictions program if they are managed in certain
systems including a treatment system that subsequently discharges into
waters of the United States pursuant to a CWA permit. The commenters
further requested that EPA revise its proposed language modifying the
mixture rule for wastes in proposed 40 CFR 261.3(a)(2)(ii) so that the
land disposal restrictions program does not apply to wastes that are
not prohibited. They argued that this revision is crucial to maintain
the status quo for managing wastes listed solely for a characteristic
in land-based units. Imposing the LDR program on such wastes would put
many surface impoundments out of compliance because they are managing
decharacterized listed wastes in land-based units that do not meet
RCRA's minimum technology requirements.
(2) EPA Response to Comments on Applicability of Land Disposal
Restrictions (LDRs) to Excluded Wastes
In proposing to expand the current exclusion for waste listed
solely for a characteristic, EPA did not intend to change the way land
disposal restrictions (LDRs) apply to the excluded waste. EPA agrees
with those comments that support the continued application of LDR
requirements to mixture and derived-from wastes listed solely for a
characteristic of ignitability, corrosivity, or reactivity after they
have become excluded. We are not imposing any new LDR requirements in
this rule.
We agree that the treatment standards for UHC's do not apply in all
cases, and have not changed the applicability of these requirements. In
general, wastes that are both listed as hazardous waste and exhibit a
characteristic only need to meet the treatment standard for the listed
waste code. (40 CFR 268.9(b)). An exception occurs when the treatment
standard for the listed waste code does not include a standard for the
constituent that causes the waste to exhibit the characteristic. In
this case, the waste must meet the treatment standards for all
applicable listed and characteristic waste codes.

[[Page 27286]]

EPA disagrees with the comment that LDRs for wastewaters and
nonwastewaters should be identical. We continue to support the existing
different treatment standards for wastewaters and nonwastewaters. Such
differences are based on waste treatability and differences in the Best
Demonstrated Available Technology applicable to the waste.
Today's rule also does not broaden the applicability of LDRs. The
revised language to 40 CFR 261.3 (g)(3) states, ``Wastes excluded under
this section are still subject to part 268 of this chapter (as
applicable), even if they no longer exhibit a characteristic at the
point of land disposal.'' When the requirements of 40 CFR part 268
would not otherwise apply to a waste (for example, during treatment of
certain characteristic wastes in a land-based unit), today's rule does
not change that fact. In the case of wastes listed solely for
ignitability, corrosivity, and reactivity that do not exhibit a
characteristic at the point of generation, these wastes are considered
to never have been hazardous and are not subject to 40 CFR part 268.

E. Applicability of Contained-In Policy to Excluded Wastes

1. Comment on Applicability of Contained-In Policy to Excluded Wastes
One commenter, the Department of Defense (DoD), requested that EPA
clarify the interaction of the contained-in policy to the RCRA wastes
that are listed solely for ignitability, corrosivity, and/or reactivity
characteristics.
2. EPA Response to Comment on Applicability of Contained-In Policy to
Excluded Wastes
The contained-in principle is the basis for EPA's longstanding
interpretation regarding application of RCRA Subtitle C requirements to
mixtures of contaminated media and hazardous wastes. Under the
``contained-in'' policy, EPA requires that soil (and other
environmental media) be managed as hazardous wastes so long as they
contain listed hazardous waste or exhibit a characteristic of hazardous
waste. EPA's application of the ``contained-in'' policy to regulate
media containing hazardous waste was upheld by the D.C. Circuit Court
of Appeals in Chemical Waste Management v. EPA, 869 F2d 1526, 1539-40
(D.C. Cir. 1989). See the LDR Phase IV final rule 63 FR 28556, 28621
(May 26, 1998) for a detailed discussion of the contained-in policy and
the Agency's reason, at the time, not to codify the contained-in policy
for contaminated soil.
Today's final rule does not directly affect the implementation of
the contained-in policy. However, wastes that are contained in
contaminated media are eligible for the 40 CFR 261.3(g) exemption for
wastes listed solely for a characteristic. Therefore, under today's
final rule, contaminated media that contain a waste listed solely for a
characteristic would no longer need to be managed as hazardous waste
when it no longer exhibits a characteristic. However, consistent with
the regulation of other decharacterized waste (and decharacterized
contaminated media), it may remain subject to LDR requirements. (The
final rule, by providing that wastes excluded under this section are
subject to LDRs ``as applicable,'' applies the current rules regarding
LDR applicability to soil containing hazardous waste. See, 40 CFR
268.49. For a detailed discussion of this subject, see 63 FR 28556,
28617 (May 26, 1998).)

IX. What Were the Major Comments on the Revision to 40 CFR 261.3
for Mixed Wastes, and How Has EPA Responded to Them?

A. 1999 Proposed Revision to 40 CFR 261.3 for Mixed Waste

In the 1999 proposal, EPA proposed a change to 40 CFR 261.3 that
would exclude certain eligible mixed wastes (i.e., wastes that are both
hazardous and radioactive) when they met the conditions outlined in the
proposed 40 CFR part 266, Subpart N, which appeared in a separate
Federal Register Notice. 64 FR 63464 (Nov. 19, 1999). EPA received
comments from nine commenters in response to the 1999 HWIR proposal
concerning the conditional exclusion from the mixture and derived-from
rules for mixed waste. The commenters supported EPA's proposed
conditional exemptions for low-level mixed waste (LLMW). Many of these
commenters believed that such an exemption was implicit in the mixed
waste proposal and necessary for the proposed mixed waste conditional
exemptions to function effectively. Many of these commenters also noted
that EPA's proposal would help eliminate much of the current regulatory
overlap associated with LLMW. One commenter added that since the
implementation of LLMW management under RCRA, it had been difficult to
find treatment/disposal capacity for its limited quantities of mixed
waste, and the proposal would improve safety, efficiency, cost and
timeliness of LLMW management. Several commenters encouraged EPA to
expedite its implementation.
However, two commenters (both Federal agencies) were concerned with
the proposed regulatory language for implementing a conditional
exemption from the mixture and derived-from rules for mixed waste. The
commenters believed it would be more appropriate to pursue regulatory
relief for low-level mixed waste (LLMW) via the standards proposed for
40 CFR part 266, Subpart N rather than within the definition of
hazardous waste in 40 CFR 261.3. This proposed exemption within 40 CFR
261.3 would provide an inconsistency in the application of the MDF
rules between wastes mixed with or derived-from the treatment of
hazardous wastes and wastes mixed with or derived-from the treatment of
LLMWs. The commenters noted that the proposed regulation for the
transportation/disposal conditional exemption for mixed waste, section
266.305, exempts the waste from certain RCRA requirements (provided
specified conditions are met), but does not exempt the waste from the
definition of hazardous waste.
EPA appreciates the support expressed for the conditional exemption
for mixed waste mixtures and derived-from wastes. In response to the
apparent confusion about how the proposed regulatory language applies
to these conditionally exempt mixed wastes, EPA has created a new
section to 40 CFR 261.3, section (h), which more carefully explains how
the definition of hazardous waste interacts with the mixed waste
conditional exemption.

B. 1995 Comments on Conditional Exemptions for Mixed Waste

In EPA's 1995 HWIR proposal, we included a discussion of possible
conditional exemptions for mixed wastes based on EPA's HWIR modeling,
or on other conditions outlined in a proposal developed by the
Department of Energy (DOE). EPA received comments from 45 commenters
regarding this discussion, many of whom urged EPA to separate mixed
waste from the HWIR rulemaking. DOE has since withdrawn its proposal,
and EPA has developed a separate mixed waste exemption, which is
published elsewhere in today's Federal Register. For a more detailed
explanation of all the mixed waste comments submitted as part of the
HWIR rulemakings, and EPA's response to those comments please see
Hazardous Waste Identification Rule: Revisions to the Mixture and
Derived-From Rules Response to Comments Document.

[[Page 27287]]

X. What Were the Major Comments on the Recommendations Submitted by
the Chemical Manufacturers Association (CMA), and How Has EPA
Responded to Them?

In August 1999, EPA received a paper from the Chemical
Manufacturers Association (CMA) \17\ describing five regulatory options
for revising the mixture and derived-from rules. CMA forwarded these
options seeking regulatory relief for some specific high-volume wastes
that they believe are low-risk and feel that EPA could propose to
exclude with very little delay. Although we did not have sufficient
time to analyze these options in detail, we included a discussion of
them in the 1999 HWIR notice to allow for public comment. Below is a
short description of each option, a summary of the comments on the
option, and EPA's response to the comments.
---------------------------------------------------------------------------

\17\ CMA has since changed the name of the organization to the
American Chemistry Council (ACC).
---------------------------------------------------------------------------

EPA is currently developing proposals related to two of the
suggestions that we believe to be the most promising and
straightforward to address: expanding the current headworks exclusion
and excluding certain combustion residues. (see Sections X.A. and X.D.
respectively). We are also considering additional proposals on the
other suggestions, but we believe more analysis would first be
necessary to decide how to address specific issues raised in the public
comments. In addition, we will consider whether other opportunities
exist for exempting low-risk waste from full Subtitle C regulation,
including additional targeted exemptions and efforts to streamline the
delisting program.

A. Expanding the Current Headworks Exclusion

One option involves an expansion of the current ``headworks''
exclusion in 40 CFR 261.3(a)(2)(iv)(A) and (B). The headworks exclusion
excludes from the mixture rule wastewaters containing small quantities
of particular F-listed solvents, based on the mass-balance flow of
these solvents through the headworks of industrial wastewater treatment
systems. CMA's options paper requests that this exclusion be amended in
three ways.
First, CMA's suggested revision would allow direct monitoring of
the actual concentration of spent solvents in untreated wastewater to
demonstrate compliance. The current requirement is to perform a weekly
mass balance of the solvents entering the system. Losses due to
volatilization must be counted in the mass balance determination under
the current system. We note that CMA's suggested wastewater monitoring
would provide accurate data at the point the wastewater enters the
treatment system, but the losses due to volatilization would not be
counted in this approach.
Second, under CMA's suggested revisions, benzene, 2-ethoxyethanol,
2-nitropropane, and 1,1,2-trichloroethane would be incorporated into
the list of chemicals for exclusion. These four chemicals were added to
the 40 CFR 261.31 list of spent solvents in 1986 but the exclusion does
not currently include these chemicals.
Third, under CMA's suggested revisions, multi-source leachate
(F039) derived solely from the disposal of the spent solvents listed in
40 CFR 261.31 would be eligible for the exclusion.
(1) Summary of Comments on Expanding Headworks Exclusion
EPA received comments from 13 commenters in response to the
discussion on expanding the headworks exclusion. Of those comments, two
were received from industry, three were from industry associations,
three were from utility companies or utility company associations,
three were from State Agencies, one was from a Federal Government
Agency, and one was from a waste management association. A summary of
the specific issues raised by the commenters is provided below.
One state commenter noted that CMAS's suggested exclusion does not
account for volatilization, an important factor considering the
solvents involved, if the wastewater treatment system is not actually
subject to Clean Air Act controls. In addition, they noted that CMA's
suggested exclusion addresses whether and how RCRA should be modified
in the wastewater treatment context, and they felt that this is a
matter that could be addressed comprehensively following the completion
of the surface impoundment study.\18\ One waste management association
commenter stated it was not clear what the potential environmental
impact would be of expanding this exclusion to additional chemicals.
---------------------------------------------------------------------------

\18\ Note: EPA's surface impoundment study was completed March
2001. See U.S. Environmental Protection Agency. Industrial Surface
Impoundments in the United States. EPA530-R-01-005. Washington, D.C.
March 2001.
---------------------------------------------------------------------------

The rest of the commenters supported the CMA's recommendations for
specific modifications to the mixture rule to expand the headworks
exclusion in 40 CFR 261.3(a)(2)(iv)(A) and (B). Commenters noted that
subsequent to the original headworks exclusion, additions were made to
the F code solvent listings, but the corresponding changes were not
made to the list of solvents in the headworks exclusion. For
consistency, benezene, 2-ethoxyethanol, 2-nitropropane and 1,1,2-
trichloroethane should be added to the list of solvents allowed under
the headworks exclusion. One State added that the circumstances and
reasoning that EPA used to support finalizing the original exclusion
remain valid for these four solvents. Commenters also noted that they
believed EPA would determine the appropriate headworks concentration
(i.e., either 1 part per million or 25 parts per million). Also, it is
appropriate, practical, and economical for a generator to manage small
amounts of spent solvent wastes in a wastewater treatment system
subject to regulation under sections 402 and 307 (b) of the Clean Water
Act.
Nine of the commenters supported the use of direct monitoring of
the actual concentration of spent solvents in untreated wastewater to
demonstrate compliance with the headworks exclusion. Several commenters
believed direct monitoring would facilitate documentation of
compliance. A Federal commenter noted that the suggested changes would
provide accurate data at the point the wastewater enters the treatment
system, but still would allow generators who rarely discharge solvents
into their wastewater systems to use the current method for verifying
compliance. Several commenters believed that the mass-balance approach
gives rise to a number of problems due to the varying degrees of
precision in the underlying measurements and, therefore, deters use of
this exclusion. Instead, direct sampling and analysis methods are much
more straightforward to implement and would provide more accurate
information about what actually is being discharged to treatment
systems. A State commented that direct monitoring provides the most
definitive information on the concentration levels of hazardous
constituents in a waste. Direct monitoring would allow generators to
apply the exclusion to its full intended regulatory limit. An industry
commenter recommended that compliance with the regulatory levels be
measured on a rolling average basis since flows may be variable.
Several commenters noted that they do not believe that direct
monitoring would encourage volatilization. They noted that EPA did not
state directly that the current measurement scheme needed to account
for volatilization when the headworks exclusion was finalized and it is
not part of the current regulatory

[[Page 27288]]

language. However, these comments recognized that over the years, EPA
has explained in preamble language and interpretive letters that it
considered accounting for volatilization losses to be necessary to
prevent facilities from volatilizing solvents in order to be eligible
for the exclusion. In the years subsequent to the statement, EPA has
issued a number of regulations addressing air emissions of organics,
including the listed solvents. Because EPA has addressed these
potential air emissions by regulations which focus specifically on
these emissions, the commenters felt that there is no need for the
headworks exclusion to have to account for them as well.
One State commenter did not support the inclusion of multi-source
leachate (F039) in the headworks exclusion, even though the leachate
might be derived from the disposal of solvent wastes. The commenter
noted that leachate might contain any variety of hazardous
constituents, due to the presence of characteristic wastes or non-
hazardous wastes. The commenter further noted that it would be
difficult to determine whether the headworks exclusion, if modified in
this manner, would protect human health and the environment
sufficiently. The commenter did state that if the discharge is
regulated under the Clean Water Act (CWA), this may provide a
reasonable amount of assurance with respect to exposure paths, relating
to the wastewater discharge.
Six of the commenters supported extending the exclusion to multi-
source leachate (F039) derived solely from the disposal of the spent
solvents in 40 CFR 261.31. A Federal commenter noted that in many
cases, leachate is contaminated with barely detectable concentrations
of F-listed solvents, yet the leachate still is classified as hazardous
waste. By allowing the wastewater to be discharged for treatment to a
wastewater treatment or pre-treatment system regulated under the CWA,
EPA would encourage remediation by lowering treatment costs. The
commenter also stated that EPA must believe that the 1 ppm/25 ppm
concentration limits established under the existing rules are
protective of human health and the environment, so extending those
limits to wastes derived from the land disposal of certain listed
solvents should be adequately protective.
Several commenters noted that the advent of the multi-source
leachate waste code simplified some hazardous waste management by
applying the single listing code to hazardous waste leachate. However,
this streamlining did create some unintended consequences. Leachate
generated solely from F001-F005 solvents no longer qualified for the
headworks exclusion, even though the composition of the leachate was
virtually identical to dilute non-leachate F001-F005 streams.
Therefore, even though F039 leachate derived solely from F001-F005
wastes are exactly the same in chemical composition as the wastes from
which they are derived, they cannot be treated in the same treatment
train. They must be segregated and handled in separate tank-based
systems or shipped off site for treatment and disposal causing
additional cost but providing no additional environmental protection.
One industry commenter recommended that EPA issue a technical
correction or clarification notice with or before promulgating the
final HWIR rule to address this problem. Under CMA's recommendation,
the headworks exclusion rationale for the solvent wastes from ongoing
production processes would be applied equally to solvent wastes
leaching from a landfill. Both are treated equally well in the
wastewater treatment plant at these low concentrations, so there is no
justification for regulating them differently.
(2) EPA Response to Comments on Expanding the Headworks Exclusion
EPA agrees that there is merit in proposing to expand the current
exclusions in 40 CFR 261.3(a)(2)(iv)(A) and (B) (the ``headworks''
exclusion) to include the four solvents listed in 1986: benzene, 2-
nitropropane, 2-ethoxyethanol, and 1,1,2-trichloroethane, and we are
currently developing a proposal on such an expansion. In the proposal,
EPA will take into account the issues raised by the commenters,
including environmental impacts of the expanded exclusion, and the use
of any available surface impoundment study data. In the meantime, we
welcome any data or additional feedback from the public on this topic.
We will also evaluate in this proposal the issue of measurement
versus mass balance calculation as a part of the implementation of the
headworks rule. EPA agrees that in the past 20 years, significant new
Clean Air Act regulations have come into effect that may address some
of the concerns about deliberate volatilization. In developing a
proposed revision to the monitoring requirements for the headworks
rule, we would take into account the issue raised by the commenters,
including the issues concerning volatilization. We welcome any
additional data the public has to support such a change.
EPA is also interested in possible applications in which solvent-
only landfill leachate may be sent to a wastewater treatment facility.
We are concerned, however, about possible difficulties in determining
whether a landfill has received only solvent wastes. As part of the
investigation, EPA would need more information characterizing possible
``solvent waste only'' landfills. We welcome any additional data the
public has on these landfills.

B. Excluding Hazardous Waste Leachate

Another of the suggested regulatory options involves leachate
derived from the land disposal of listed hazardous waste which is
subsequently managed in a system regulated under the Clean Water Act.
CMA argues that the leachate is both physically and chemically
dissimilar from the wastes that were originally listed. Under the
option presented, leachate would not be hazardous, even when generated
from the treatment, storage or disposal of hazardous waste, unless it
exhibited one or more of the hazardous waste characteristics of 40 CFR
Part 261, Subpart C.
(1) Comments on Excluding Hazardous Waste Leachate
EPA received comments from eight commenters in response to
excluding leachate. Of those comments, three were received from
industries, one was from an industry association, three were from State
Agencies, and one was from a waste management association. A summary of
the specific issues raised by commenters is provided below.
The waste management association did not support the exclusion,
noting that treatment tanks that are part of a Clean Water Act (CWA)
system already are conditionally exempt. Thus, it was not clear to the
commenter why a more expansive exclusion was advisable, particularly
because leachate from hazardous wastes ``may often contain toxic
constituents that are not subject to NPDES discharge limits or water
quality standards.'' Also, one State did not support the exclusion
noting that many organics of concern are not covered by the toxicity
characteristic. Furthermore, the State commenter believed that it would
be inappropriate to exclude these wastestreams without examining the
results of the surface impoundment study, particularly without any
supporting data on the physical/chemical properties of the leachate and
its associated risks. Finally, these State comments claimed that there
is no generic way to tell if these leachates will pose a problem. They
could be very

[[Page 27289]]

different from unit to unit depending upon what type of waste has been
placed in the unit. The commenter also felt that there could be an air
emission problem or the leachate could cause the sludge to become
hazardous. Instead, the State commenter thought industries should go
through a case specific delisting for these wastes.
One State commenter did not understand CMA's proposal to exclude
leachate from the derived-from rule. Currently, F039 leachate waste is
subject to Part 268 land disposal restriction requirements and could be
treated onsite in a tank or container within 90 days of generation
without a permit. If this treated waste was an industrial wastewater
discharge that was a point source discharge subject to regulation under
section 402 of the Clean Water Act, it would be eligible for the
261.4(a)(2) exclusion. In that case the wastewater would not be a solid
waste. The State wondered if CMA was proposing that F039 be exempt from
LDR requirements. If that was the case, the State did not support such
a recommendation.
One State commenter stated that there may be merit in excluding
leachate resulting from the land disposal of a listed hazardous waste
when the leachate is subsequently managed in a wastewater treatment
system regulated under the CWA. However, to make a definitive decision,
the State expressed a need to evaluate constituent concentration data,
current management practices, environmental injury cases caused by the
residues, and whether the residues commonly exhibit a hazardous waste
characteristic. Since (1) the leachate is generated from landfills
where only treated hazardous wastes are disposed, and (2) bonafide
treatment has occurred and the residues are physically and/or
chemically different from the hazardous wastes they were generated
from, the State believed it was appropriate to view the residues as
newly generated wastes and impose RCRA regulation only if the waste
exhibited a hazardous waste characteristic.
The rest of the commenters believed that EPA should consider
leachate from hazardous waste landfills to be a newly generated waste
rather than derived-from waste. As a newly generated waste, it would be
subject to regulation if it failed one or more hazardous waste
characteristics, but would no longer be subject to hazardous waste
regulation solely because the landfill accepted listed hazardous
wastes. Several commenters noted that most POTWs would not accept
direct discharges of listed hazardous waste, even if the leachate met
all applicable effluent guidelines and other standards. As a result,
several commenters noted that they must use costly and unnecessary
incineration or other treatment at off-site facilities. In addition,
the transportation and management from sending the wastes off-site
actually may increase environmental risks and energy usage relative to
the protective and cost-effective management in industrial wastewater
systems. Several commenters noted that both landfills and land
treatment units, as defined by RCRA, generate a leachate when
constructed with a bottom liner. Leachate from either type of unit
should qualify for the exclusion so long as it did not fail for a
hazardous characteristic and the wastewater treatment system receiving
the leachate was subject to regulation under the CWA. Two commenters
also recommended as an alternative to considering leachate from
hazardous waste landfills to be a newly generated waste, that EPA make
it eligible for the headworks exclusion.
(2) EPA Response to Comments on Excluding Hazardous Waste Leachate
At this time, EPA is still considering the suggested regulatory
exclusion for leachate derived-from landfilled hazardous waste as well
as other specific exemption options, but we first need to evaluate
several important issues. As noted in the comments, most hazardous
waste leachate is regulated under a separate waste code, F039. To date,
we have received no information that would cause us to reconsider that
listing, although we would welcome any data that might be helpful in
such a re-evaluation. However, in the most recent EPA study of landfill
leachate characteristics (65 FR 3007, January 19, 2000), we found
considerable differences between the leachate samples from hazardous
and those from non-hazardous landfills in both numbers of constituents
of concern and their concentrations. Hazardous waste landfill leachate
contained a greater number of constituents than non-hazardous waste
landfill leachate, and constituents found in both hazardous and non-
hazardous waste landfill leachate were generally present in hazardous
waste landfill leachate at concentrations an order of magnitude higher
than those found in non-hazardous waste landfill leachate.\19\ As noted
in the comments, these pollutants can include many organic hazardous
constituents not covered by the Toxicity Characteristic. Absent a risk
assessment, it is not possible to determine whether the levels of these
constituents pose unacceptable risk. However, the presence of these
constituents is a strong indication that more study would be needed
before developing an exemption for hazardous waste leachate.
---------------------------------------------------------------------------

\19\ Development Document for Final Effluent Limitations
Guidelines and Standards for the Landfills Point Source Category,
EPA-821-R-99-019, U.S. EPA, January 2000.
---------------------------------------------------------------------------

C. Excluding Hazardous Waste Aggressive Biological Treatment Residues

Another suggested regulatory option involves excluding residues
from the biological treatment of listed hazardous wastewaters. CMA
argues that theses wastes are both physically and chemically dissimilar
from the wastes that were originally listed. In addition, CMA notes
that biological treatment can greatly reduce or eliminate organic
chemicals. Under the options presented in CMA's discussion papers,
these wastes would not be hazardous, even though they are generated
from the treatment, storage or disposal of hazardous waste, unless they
exhibit one or more of the hazardous waste characteristics of Subpart C
of 40 CFR part 261.
(1) Comments on Excluding Residues From Aggressive Biological Treatment
of Hazardous Waste
EPA received comments from 10 commenters in response to the CMA
recommendation to exclude aggressive biological treatment residues from
the derived-from rule. Of those comments, four were received from
industries, two were from industry associations, three were from State
Agencies, and one was from a waste management association. A summary of
the specific issues raised by commenters is provided below.
The waste management association did not support excluding sludges
derived from the biological treatment of listed hazardous wastes. The
commenter noted that the sludges typically contain concentrations of
heavy metals that warrant further treatment and Subtitle C disposal.
EPA's listing background document for F006 electroplating sludges, for
example, provides data on the presence of lead, cadmium, chromium and
other toxic metals in such wastewater treatment sludges.
Two States did not support the exclusion, noting that these sludges
can continue to pose a threat to human health and the environment and
should continue to be subject to the derived-from rule. The States also
believed that these wastes should meet land disposal restriction (LDR)
treatment standards, just as any other listed hazardous waste

[[Page 27290]]

is required to meet a treatment standard before being disposed in a
permitted Subtitle C facility. One State noted that EPA proposed the
retention of the mixture and derived-from rules in part because of the
potential toxicity of wastewater treatment sludges. (See 64 FR 63389,
November 19, 1999).
One State commenter noted that there may be merit in excluding
aggressive biological treatment residues. However, to make a definitive
decision, the State would need to evaluate constituent concentration
data, current management practices, environmental injury cases caused
by the residues, and whether the residues commonly exhibit a hazardous
waste characteristic. Since wastewater treatment is a bonafide
treatment method proven to detoxify or otherwise treat hazardous waste
and the residues are physically and/or chemically different from the
hazardous wastes they were generated from, the State believed it was
appropriate to view the residues as newly generated wastes and impose
RCRA regulation only if the waste exhibited a hazardous waste
characteristic.
The rest of the commenters supported excluding sludges derived from
the biological treatment of listed hazardous wastes. Many commenters
noted that industrial biosludges currently are overmanaged as hazardous
wastes at a high cost to industry. Several commenters added that
residues from biological treatment processes have reduced organic
constituent concentrations significantly relative to the original
waste. Commenters noted that most listed wastewaters are 99% water and
are therefore substantially different in terms of potential for
environmental harm than a non-wastewater form of the same waste. Also,
residues derived from aggressive biological treatment are fundamentally
different (both chemically and physically) from the originally listed
wastes and these residues should be considered a new point of
generation. One commenter submitted data on the concentration of
chemicals in a combined treatment sludge.
Additionally, commenters claimed that in recent hazardous waste
listings, EPA has recognized that treatment sludges do not necessarily
present any significant environmental hazard even when there is
sufficient hazard in the waste as generated to warrant listing by EPA
(e.g., wastewater treatment sludges from carbamates, anthraquinone, and
chlorinated aliphatics). Commenters also noted that public reporting of
these very large volumes of derived-from waste misleads the public over
the amount of actual hazardous waste in their communities.
Several commenters believed that there should not be a specific
contingent management requirement associated with the excluded
biosludge. Rather, the sludge would be subject to state industrial non-
hazardous waste RCRA (Subtitle D) programs, including restrictions on
industrial non-hazardous waste landfilling, combustion and other
management options. Since industrial biosludge resulting from an
aggressive biological treatment system is not significantly different
from sewage sludge, the commenters expected that any restrictions
placed on the use of sewage sludge would likewise apply to excluded
sludge.
A few commenters pointed out that the LDR program for
characteristic wastes has over the years established new points of
generation. The commenters noted that in the LDR program, EPA
recognized that various treatment residuals differ from the wastes from
which they are derived and should not continue to be regulated as the
same wastes. In at least three other situations, EPA has made a
specific determination that the generation of wastewater treatment
biosludge constitutes a new point of generation, generally on the basis
that the wastewater being treated falls into one treatability group and
the resultant sludge into another. They are: (1) Sludge from the
treatment of U154 contaminated groundwater--The sludge is considered
newly generated waste because it is a different treatability group than
the wastewater being treated--sludge generated from treating non-
ignitable wastewaters not derived from hazardous waste (03/21/96
Berlow, EPA to Day, Bryan Cave, LLP); (2) LDR notification requirements
for wastewaters and sludges--LDR requirements apply only to wastes that
are hazardous at the point of generation. Non-hazardous sludges removed
from a wastewater treatment unit require no LDR notification. The
requirement to identify and treat for underlying hazardous constituents
(UHCs) is not applicable to wastewaters managed in centralized
wastewater treatment systems subject to the CWA or to sludges that are
not hazardous at the point of generation (05/01/97 Cotsworth, EPA to
Dolce, Award Environmental Inc.); and (3) applicability of land
disposal restrictions to tank-based wastewater treatment systems--LDRs
do not apply to waste managed in systems that are entirely tank-based;
sludge generated from wastewater treatment belongs to a different
treatability group, and is therefore a newly generated waste that
should be evaluated at the point of generation (03/29/97 Berlow, EPA to
Day, Bryan Cave, LLP).
(2) EPA Response to Comments on Excluding Residues From Aggressive
Biological Treatment of Hazardous Waste
EPA is considering a tailored exclusion for biological treatment
residues, but does not believe that a blanket exclusion from the
mixture and derived-from rules is appropriate for such wastes. Not all
wastestreams are amenable to biological treatment, and the composition
of the residuals generated from biological treatment would vary greatly
depending on the influent and on the efficacy of the treatment system.
We have, in the past, determined that biological treatment systems
are inappropriate for metals and could result in impermissible dilution
under the LDR program.\20\ We have also denied a delisting petition for
K035 sludges resulting from aerated biological treatment of creosote in
a surface impoundment in part because of downgradient groundwater
contamination.\21\ In addition, we have information that facilities
have attempted to avoid generating F037 and F038 wastes by adding
minimal aeration to primary treatment units and claiming the sludges
from these units as excluded.\22\
---------------------------------------------------------------------------

\20\ EPA 1990. LDR Determination of Waste Stream Dilution,
Letter from Jeffery Denit, Deputy Director, Office of Solid Waste to
Bruce Smith, Director, Office of Hazardous Waste Programs, EPA
Region III, October 14, 1990. [FAXBACK 13414, PPC 9551.1990(06)]
\21\ EPA 1987. K035 Listing and Inclusion of Sludges from
Biological Treatment of Creosote Production Wastes, Letter from
Bruce R. Weddle, U.S. EPA, to Jordan Dern, Koppers Company, Inc.,
December 11, 1987. [FAXBACK 13105, PPC 9444.1987(52)].
\22\ U.S. EPA 1991. Draft Region VIII Policy on ``Aggressive
Biological Treatment'', Letter from Robert L. Duprey, Director,
Hazardous Waste Management Division (EPA Region VIII) to Sylvia K.
Lowrance, Director, Office of Solid Waste, April 19, 1991 (Ref:
8HWM-RI)
---------------------------------------------------------------------------

However, EPA believes there may be merit to the idea of regulating
certain types of biological treatment residues differently. As noted in
the comments, we have in the past excluded certain types of biological
treatment wastes from regulation (see, for example, 40 CFR
261.3(c)(2)(ii)(D)). There may be other types of waste similarly
amenable to biological treatment. Before developing such a regulatory
proposal, EPA would first gather and analyze data on biological
treatment waste. Therefore, any such data would be welcomed by the
Agency.

[[Page 27291]]

D. Excluding Hazardous Waste Combustion Residues

Another of CMA's suggested options involves excluding residues from
the combustion of listed hazardous waste. CMA argues that these wastes
are both physically and chemically dissimilar from the wastes that were
originally listed. In addition, CMA notes that combustion can virtually
eliminate organic chemicals. Under the options presented in CMA's
discussion papers, these wastes, which would include combustion ash,
slag, air pollution control residue and scrubber water, would not be
hazardous, even though they are generated from the treatment, storage
or disposal of hazardous waste, unless they exhibit one or more of the
hazardous waste characteristics of 40 CFR part 261, Subpart C.
(1) Comments on Excluding Hazardous Waste Combustion Residues
EPA received comments from 15 commenters in response to the CMA
recommendation to exclude hazardous waste combustion residues. Of those
comments, seven were received from industries, two were from industry
associations, four were from State Agencies, one was from a waste
management company, and one was from a waste management association. A
summary of the specific issues raised by commenters is provided below.
One waste management association and two State commenters did not
support excluding combustion residues, noting that there is a great
deal of variability in combustion residues. While some organic
compounds are destroyed effectively by the combustion process, the
residue may contain persistent constituents (e.g., dioxins and metals)
that are toxic. Accordingly, while the combustion byproducts may be
physically and chemically dissimilar from the listed waste it is
derived from, the byproducts have toxic properties that could cause
environmental degradation. The commenters believed that relying on the
TC by itself fails to provide adequate protection of human health and
the environment. The commenters mentioned that not all metals of
concern are covered by the TC. They also noted that the TC only
measures potential risks via the groundwater pathway, and it is not
definitive that groundwater is the driving risk pathway for these
wastes. Because the TC approach does not comprehensively evaluate
potential risks, wastes that do not exhibit hazardous waste
characteristics are not necessarily non-hazardous. In addition, one
State commenter believed it was prudent to wait for EPA's anticipated
action on proposed combustion residues to address the physical and
chemical properties of these wastes before any action is taken on CMA's
proposal.
Two State commenters stated that there may be merit in excluding
residues from the combustion of listed hazardous wastes. However, to
make a definitive decision, one State would need to evaluate
constituent concentration data, current management practices,
environmental injury cases caused by the residues, and whether the
residues commonly exhibit a hazardous waste characteristic. Since
bonafide treatment has occurred and the residues are physically and/or
chemically different from the hazardous wastes they were generated
from, the State believed it was appropriate to view the residues as
newly generated wastes and impose RCRA regulation if the waste
exhibited a hazardous waste characteristic. Another State commenter
believed an exclusion for combustion residues could be appropriate if
the combustion takes place in a permitted (not interim status)
hazardous waste combustion device; any listed wastes are listed for
organic hazardous constituents only; the residual must not exhibit any
characteristics; and the residues meet LDRs, including standards for
underlying constituents. This approach would protect human health and
the environment fully and would allow many combustion residues to exit
Subtitle C regulation once LDRs are met.
The rest of the commenters believed that EPA should consider
residues from hazardous waste combustion to be a new point of
generation. These combustion residuals substantially differ in their
physical and chemical makeup from the original listed hazardous wastes
from which they are derived. Subtitle C regulation is not needed for
such combustion residuals, especially if the residues do not exhibit
hazardous characteristics. Instead, the residues can be managed
adequately and protectively as industrial non-hazardous waste or
discharged under the Clean Water Act. The commenters believed that the
high cost of regulating these materials as hazardous waste purchases
little or no increased protection of human health and the environment.
The hazardous waste combustion process destroys virtually all of the
organics in the listed wastes from which these residuals are derived,
and the Toxicity Characteristic limits for metals are virtually the
same as the health-based limits EPA-established for excluding Bevill
wastes from Subtitle C regulation. One commenter submitted information
on the operating parameters and limits for their combustion unit and
the concentrations of the sludge from incinerator scrubber water
generated.
One industry commenter noted that in combustion-related
rulemakings, EPA consistently has maintained that well-operated and
maintained combustion units can achieve high combustion efficiencies
and can be operated in a manner that is protective of human health and
the environment. Therefore, the commenter recommended the exclusion be
limited to residues from units that continuously monitor stack
emissions of CO, and do not exceed a CO level of 100 ppmv measured as
an hourly rolling average.
While agreeing with CMA's proposal, one association commenter
believed it should be extended to combustion residues from facilities
operating pursuant to 40 CFR part 266, subpart F, specifically residues
from precious metal reclamation operations. The commenter noted that
the recovery of precious metals from hazardous waste is not a TSDF
operation, and the units are not permitted under the same CFR sections.
The commenter added that precious metal-bearing residues also are
environmentally safe for two additional reasons: (1) Precious metal-
bearing residues must not exhibit one or more of the characteristics of
hazardous waste and (2) the residues must contain economically
significant amounts of precious metals (to partake of the authority of
40 CFR 266.100(f)), and thus such wastes will be further reclaimed
rather than disposed, ensuring environmentally protective management.
One commenter supported the use of the TCLP extract concentration
limits in Appendix VII to 40 CFR part 266 as the criteria for excluding
combustion residues. Several commenters also believed that solid
residues from hazardous waste combustion units that do not exhibit any
toxicity characteristic should be considered industrial non-hazardous
waste. As such, the materials would be subject to state industrial non-
hazardous waste programs.
(2) EPA Response to Comments on Excluding Hazardous Waste Combustion
Residues
EPA is considering a possible exclusion for certain combustion
residues, but does not believe that a blanket exclusion from the
mixture and derived-from rules is appropriate for such wastes. Although
hazardous waste combustors must meet at least 99.99% DRE (destruction
and removal efficiency), metals and certain organics may only be
transferred to a residue.

[[Page 27292]]

The constituents can become significantly concentrated in the residue.
EPA does not believe that stack emissions are a reliable measure of the
risk posed by the combustion residue; in fact, as technology improves
the removal capability of air pollution control devices, the resulting
residue will likely have greater concentrations of hazardous
constituents and may pose unacceptable risks if mismanaged. In
addition, several of the mixture and derived-from waste damage cases
that EPA has identified are a result of improper disposal of combustion
residues.\23\
---------------------------------------------------------------------------

\23\ See table 1, EPA 2000. Releases of Hazardous Constituents
Associated with Mixture and Derived-from Wastes (An Update) U.S.
EPA, April 2000.
---------------------------------------------------------------------------

In addition, EPA is particularly concerned about the possible
formation of dioxins and furans during hazardous waste combustion. In
the September 1999 combustion rule, we noted that there is ``a
considerable body of evidence'' to show that dioxin and furan compounds
can be formed in the post-combustion regions of hazardous waste
combustors (see 64 FR 52994). Because of this concern, we have added
these dioxin and furan compounds to Appendix VIII of 40 CFR part 266,
which lists products of incomplete combustion (PICs) likely to be found
in stack effluents.
However, EPA is considering a proposed tailored exclusion for
certain combustion residues. For example, EPA is currently developing
for public comment a proposed exclusion that focuses on wastes that
have been slagged to liquefaction. These slagged wastes are unique
because the high temperatures associated with liquefaction (2100 deg.F,
typically) appear to eliminate organic chemicals, including PICs, and
generate a slagged residue which is a glassy, liquid, molten material
that, when cooled, forms a potentially durable, homogeneous, solid
mass. This combination of elimination of organic chemicals and change
in physical form (which can reduce risk from non-groundwater pathways)
make these slagged residues potential candidates for de-regulation.
However, the liquefaction process does not reduce the concentration of
toxic metals in the waste, which we would need to evaluate for
potential risks to human health and the environment. EPA is planning to
address this issue, as well as other possible tailored exclusions for
combustion residues, in the upcoming proposal.

E. Expanding the Current De Minimis Exclusion

A final regulatory option to revise the mixture and derived-from
rules would expand a current exclusion for ``de minimis'' losses that
result from the manufacture of commercial chemical products. The
current exclusion, found in 40 CFR 261.3(a)(2)(iv)(D), excludes small
losses of a commercial chemical product that can result from normal
handling of the chemicals during the manufacturing process. The
existing exclusion applies to commercial chemical products or
intermediates, when they are lost during the manufacturing operation
and are subsequently managed as a wastewater subject to regulation
under the Clean Water Act (CWA) (see 46 FR 56586). The suggested
expansion of this option would also exclude small losses from the
normal handling of all listed hazardous wastes (instead of just
commercial chemical products) when managed as a wastewater under the
CWA. One rationale for the current ``de minimis'' exclusion is that a
facility has little economic incentive to allow spills, leaks or other
losses of commercial products. With respect to wastes, CMA believes
that tank, container and air emission management standards of 40 CFR
parts 264 and 265, subparts I, J, BB, and CC serve to encourage safe
management of these wastes.
(1) Summary of Comments on Expanding the Current De Minimis Exclusion
EPA received comments from 15 commenters in response to the
suggested expansion of the de minimis exclusion. Of those comments, six
were received from industries, four were from industry associations,
three were from State Agencies, one was from a Federal Government
Agency, and one was from a waste management association. A summary of
the specific issues raised by commenters is provided below.
Three commenters did not support the exclusion, believing that the
exclusion might serve as an incentive for generators to spill or leak
listed wastes into non-hazardous wastewater systems if those wastes
were eligible for an exclusion. The current exclusion exists for
commercial chemical products and companies typically ensure that raw
materials/products are handled in a manner which would minimize losses,
as these materials/products are valuable. The commenters did not
believe that companies necessarily would take the same amount of care
to prevent losses of listed wastes, if those wastes were excluded from
Subtitle C.
One State commenter supported the exclusion. However, the State
believes that rinsate from large hazardous waste containers that are
rendered empty should be outside the definition of a de minimis loss.
Large containers such as tanker trucks could contain substantial
quantities (possibly hundreds of gallons) of hazardous waste. Such a
volume of hazardous waste is outside the scope of losses that should be
defined as de minimis and should not be defined as such.
One industry commenter stated that it was not clear from the
preamble discussion what was meant by ``rinsate from empty containers
or from containers that are rendered empty by that rinsing.'' The
commenter noted that rinsate from containers that held hazardous waste
``generally contains concentrations of hazardous constituents which are
at least as high as the original waste'' and may contain significant
quantities of solids. The quantities used to rinse containers of this
type also may be significant depending upon the level of contamination
in the container. In some cases it is not possible to clean a container
to the point of being empty under the RCRA regulations and the
container has to be disposed of as hazardous waste. The commenter
believed that this issue must be clarified further before any exclusion
could be considered. An industry association commenter also noted that
the CMA proposal did not identify adequately the wastes for which the
exclusion would operate. Since RCRA-empty container rinsate is already
excluded, the commenter believed it should be specified that any
exclusion need only address acute hazardous waste rinsate.
The rest of the commenters supported expanding the de minimis
exclusion to all listed wastes. Several commenters believed that the
exclusion could be extended beneficially to cover the very small losses
from the normal handling of all listed wastes. The stringent regulation
of hazardous waste handling at the site of generation means that few
losses of this type would be expected to occur. The ability to manage
de minimis losses of listed wastes as non-hazardous would ease RCRA
compliance significantly without compromising the integrity of the
NPDES wastewater treatment system or protection of human health and the
environment.
The commenters noted that there was no reason to assume that a non-
hazardous industrial wastewater treatment facility was any less capable
of providing adequate treatment of the hazardous constituents found in
listed wastes. EPA's stringent container and

[[Page 27293]]

tank management standards in 40 CFR parts 264 and 265 subparts I and J,
and air emission standards in subpart CC, serve as powerful incentives
to properly manage these wastes to minimize the occurrence of ``de
minimis'' losses. The Federal commenter supported the expansion, noting
that it would provide to military installations the same level of
regulation as is currently applicable to manufacturing industries. One
industry commenter recommended that facilities wishing to take
advantage of this exclusion be required to develop and implement
written Best Management Practices (BMP) for all loading, unloading and
transfer operations which are designed to minimize spills and prevent
abuse of the exclusion.
One commenter questioned why EPA never has set out a scientific
rationale by which it reserves the discriminatory use of the de minimis
rule to those engaged in the manufacturing process and denies it to all
others, including stand-alone bulk liquid commercial chemical storage
terminals. The commenter also suggested that de minimis losses include
those from normal material handling operations (e.g., spills from the
unloading or transfer of materials from bins or other containers, leaks
from pipes, valves or other devices used to transfer materials); minor
leaks of process equipment, storage tanks or containers, leaks from
well-maintained pump packings and seals; sample purgings; relief device
discharges; discharges from safety showers and rinsing and cleaning of
personal safety equipment; and rinsate from empty containers or from
containers that are rendered empty by that rinsing.
Another commenter believed that there would be significant benefits
from allowing de minimis losses of commercial chemical products from
laboratories to be covered by the current regulatory exclusion. The
types of commercial chemical products being used and tested in the
laboratory also could be expected to be amenable to effective treatment
in an on-site wastewater treatment system. The commenter noted that
significant time, effort and cost is involved in segregating and
capturing these types of de minimis losses from on-site laboratories.
(2) EPA's Response to Comments on Expanding the Current De Minimis
Exclusion
EPA is considering the possibility of expanding the current de
minimis exclusion for wastes managed in a wastewater treatment system
subject to the Clean Water Act. However, EPA is concerned about the
possible negative incentives that might result from extending the de
minimis exclusion to wastes listed in 40 CFR 261.31 and 261.32 (F and K
wastes, respectively). As noted in the comments, there is a direct
economic incentive to ensuring that raw materials/products are handled
in a manner which would minimize losses, as these materials/products
are valuable. This incentive does not exist for hazardous waste. The
concept of ``de minimis'' is also variable, depending on the quantities
of material handled and the relationship of those quantities with the
flowrate of the facility's wastewater treatment plant. However, EPA
realizes that separation of small leaks of certain hazardous wastes can
sometimes be impractical.
One possible approach would be to base the concept of ``de
minimis'' on some fixed quantity of the waste, such as a Reportable
Quantity (RQ) in Superfund regulations (see 40 CFR 302.4 and Table
302.4). By statute, all hazardous wastes must be given an RQ. EPA may
pursue the concept of de minimis related to RQs (or some fraction or
multiple thereof) as we consider this issue further. In pursuing such a
change, EPA would do so through a proposed rulemaking.
In conclusion, EPA is currently developing proposals related to two
of the suggestions that we believe to be the most straightforward to
address: expanding the current headworks exclusion and excluding
certain combustion residues (see Sections X.A. and X.D. respectively).
We will also consider developing additional proposals on the other
suggestions as well as other targeted exemptions, but we believe more
analysis would first be necessary to decide how to address specific
issues raised in the public. EPA welcomes any information or data that
would help us in developing these analyses.

State Authorization

XI. How Will Today's Regulatory Changes Be Administered and
Enforced in the States?

Under section 3006 of RCRA, EPA may authorize qualified States to
carry out the RCRA hazardous waste program within the State. Following
authorization, we maintain independent enforcement authority under
sections 3007, 3008, 3013, and 7003 of RCRA, although authorized States
have enforcement responsibility. An authorized State could become
authorized for today's regulatory changes by following the approval
process described under 40 CFR 271.21. See 40 CFR part 271 for the
overall standards and requirements for authorization.
We are finalizing the retention of the mixture and derived-from
rules. Most states have already received authorization for the mixture
and derived-from rules as they currently stand. The rules are already
in effect in those authorized States. Those states that are already
authorized for the mixture and derived-from rules do not need to obtain
authorization for those rules again. We are also revising those rules
under the authority of sections 3001(a), 3002(a), and 3004(a) of RCRA.
These revisions will not go into effect in authorized States until they
adopt the revisions and receive authorization from us for the revision
to their regulations.
None of today's revisions are more stringent or broaden the scope
of the existing Federal requirements. Authorized States are not
required to modify their programs when we promulgate changes to Federal
requirements that are less stringent than, or that narrow the scope of,
existing Federal requirements. This flexibility stems from RCRA section
3009, which allows the States to impose (or retain) standards that are
more stringent than those in the Federal program. (See also 40 CFR
271.1(i)). Therefore, States are not required to adopt the revisions to
the mixture and derived-from rules in today's rule, although EPA will
strongly encourage their adoption.

Administrative Requirements

XII. How Has EPA Fulfilled the Administrative Requirements for This
Rulemaking?

Several statutes and executive orders apply to rulemaking. Below is
an explanation of how we address the requirements in those provisions:

A. Executive Order 12866: Determination of Significance

Under Executive Order 12866 (58 FR 51,735 (Oct. 4, 1993)), EPA must
determine whether a regulatory action is ``significant'' and,
therefore, subject to OMB review and the other provisions of the
Executive Order. The Order defines a ``significant regulatory action''
as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;

[[Page 27294]]

(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or rights and obligations or recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866.
Pursuant to the fourth term of Executive Order 12866, we have
determined that this rule is a ``significant regulatory action''
because there are novel policy issues arising out of legal mandates. As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations are documented in the
docket to today's rule.
Although today's final rule is not ``economically significant,''
the Agency prepared an economics background document in support of
today's rule, titled Economic Assessment of the U.S. EPA's 2001 Final
Rule Revising the Mixture and Derived-From Rules.
There are currently 29 hazardous waste codes within the RCRA
program listed solely for ignitability (I), corrosivity (C), and/or
reactivity (R) characteristics. Today's rule excludes these wastes from
RCRA Subtitle C regulation, if such wastes are de-characterized and
meet the associated LDR treatment standards.To estimate the potential
economic impact of excluding these 29 characteristically-listed RCRA
waste codes, we analyzed the type and quantity of industrial hazardous
wastes contained in the two databases: the 1986 ``Generator Survey'',
and the 1996 ``National Hazardous Waste Constituent Survey.'' These two
databases are described in the Economic Assessment background document.
This exclusion is expected to benefit the relevant segment of the
RCRA regulated community by reducing the cost of shipping and disposing
these de-characterized wastes. This potential cost savings is modeled
in this study as consisting of two components:
(1) The difference between the cost for disposal of treatment
residuals from these 29 waste codes in hazardous landfills (i.e.,
current or ``baseline'' practice), compared to the cost for disposal in
nonhazardous landfills under this exclusion.
(2) The reduction in burden hours and associated burden cost for no
longer requiring preparation, transmitting and filing of truck shipment
hazardous waste manifests (EPA Form 8700-22) for these potentially
excluded wastes.
The database extractions, computations and findings of the impact
analysis are presented in the Economic Assessment background document.
The highlights of EPA's estimated economic impacts for this revision
are as follows:

--236 applicable industrial hazardous waste streams, totaling 3.6
million tons in annual generation (before RCRA Subtitle C hazardous
waste treatment) by an estimated 120 US facilities.
--As generated, these waste streams consist of 99% liquid (mainly
organic liquids) and 1% non-liquid (sludge) waste forms.
--The 3.6 million annual tons of applicable waste (before RCRA Subtitle
C hazardous waste treatment), represents 1.4% of the total RCRA
hazardous waste universe (1993 BRS large generator total quantity = 258
million tons).
--Approximately 75% of the potentially excluded waste streams are
identified by waste code F003 (spent non-halogenated solvents) plus a
characteristic waste code (for example, D001), and 19% are identified
by waste code F003 only.
--Applicable waste streams are located in 17 four-digit level SIC code
industry sectors. 146 (62%) of the 236 applicable waste streams are
generated by industries in SIC 28 (represented also by NAICS code 325).
--There are 51 different hazardous chemical constituents in the
wastestreams before treatment; prevalent ones include: ethylbenzene,
toluene, methyl ethyl ketone, methanol, ethyl acetate, xylenes,
acetone, methylene chloride, and n-butyl alcohol.
--After RCRA Subtitle C treatment (mainly incineration), the 236
wastestreams result in the annual disposal of about 57,400 tons of
treatment residuals, primarily in the form of incineration ash.
--Potential annual industry waste treatment residual disposal cost
savings is estimated at $4.593 million, while annual reduction in truck
shipment manifesting cost is estimated at $0.455 million. These two
cost savings components represent a total annual cost savings estimate
of $5.048 million. Applying -15% to +30% cost estimation uncertainty to
this point-estimate (as explained in the background document), produces
the associated cost savings estimation range of $4.29 to $6.56 million
per year.

B. Regulatory Flexibility Act

Pursuant to the 1980 Regulatory Flexibility Act (RFA) (5 U.S.C. 601
et seq., as amended by the Small Business Regulatory Enforcement
Fairness Act (SBREFA) of 1996), whenever an agency publishes a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, a regulatory flexibility analysis is not required if the head
of an agency certifies that the rule will not have a ``significant''
economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a ``significant'' economic impact on a
substantial number of small entities. Regulatory Flexibility Act (RFA),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 et. seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business that meets
the Small Business Administration size standards established for
industries as described in the North American Industry Classification
System (see http://www.sba.gov/size/NAICS-cover-page.html).; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to

[[Page 27295]]

identify and address regulatory alternatives ``which minimize any
significant economic impact of the proposed rule on small entities.'' 5
U.S.C. 603 and 604. Thus, an agency may certify that a rule will not
have a significant economic impact on a substantial number of small
entities if the rule relieves regulatory burden, or otherwise has a
positive economic effect on all of the small entities subject to the
rule.
The following discussion presents the facts for EPA's
determination. EPA has examined this rule's potential effects on small
entities as required by the RFA/SBREFA, and has determined that this
action will not have a significant economic impact on a substantial
number of small entities. As discussed in Section XII.A of this
preamble, we have prepared an economic analysis of the potential
effects of this rule, and have determined that the rule is expected to
have a net beneficial effect on eligible entities, in the form of
reduced environmental regulatory compliance costs for industrial waste
management. The final rule allows small (and other size) entities
voluntarily to exempt certain solid wastes (i.e. mixtures and
derivatives of solid wastes listed as RCRA hazardous solely for the
ignitability, corrosivity, and/or reactivity characteristics, which no
longer exhibit any such characteristic, and which comply with RCRA land
disposal restrictions), from compliance with the RCRA Subtitle C
hazardous waste regulatory system. The economic analysis evaluates the
extent to which both small quantity and large quantity industrial waste
generators might be potentially eligible for cost savings under this
rule, as a result of seeking this exemption. This proposed rule is
voluntary, and the overall economic effect of this regulation for both
small and large entities which are eligible to participate, is expected
to be a net average annual reduction in industry regulatory burden and
compliance costs. Consequently, because the net economic impacts and
effects of this rule are beneficial rather than adverse, we have
concluded that today's final rule will relieve regulatory burden for
all small entities.

C. Paperwork Reduction Act (Information Collection Request)

The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 0801.12) and a copy may be obtained from Sandy Farmer by mail
at OP Regulatory Information Division; U.S. Environmental Protection
Agency (2137); 1200 Pennsylvania Avenue NW.; Washington, DC 20460, by
E-mail at farmer.sandy@epamail.epa.gov, or by calling (202) 260-2740. A
copy may also be downloaded off the Internet at http://www.epa.gov/icr.
Today's revisions of 40 CFR 261.3 do not include any new
recordkeeping or reporting requirements. However, the revisions could
reduce the burden estimate for existing RCRA information collection
requirements, such as the Uniform Hazardous Waste Manifest (Form 8700-
22A). As discussed in Section XII.A. of this preamble, today's rule
could exclude approximately 54,700 tons of treated waste residuals
(mainly incineration ash) per year. Assuming that these now-excluded
wastes are shipped offsite for disposal, and assuming that an average
truckload carries about 20 tons (of solids), today's rule could result
in approximately 2,870 shipments per year that would no longer require
Uniform Hazardous Waste Manifest. (This estimate is an upper bound,
since many hazardous waste generators manage their waste on-site). The
RCRA Hazardous Waste Manifest System ICR (No. 0801.12.) estimates an
annual burden of 1.29 hours per shipment of hazardous waste. Therefore,
today's rule could reduce the total burden associated with manifests by
3,702 hours per year. (The current burden associated with manifests is
estimated to be 2,920,383 hours per year).
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, disclose, or provide
information to or for a Federal agency. This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, we
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes, with the final rule, an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, we must have developed a
small government agency plan under section 203 of the UMRA. The plan
must provide for notifying potentially affected small governments,
enabling officials of affected small governments to have meaningful and
timely input in the development of EPA regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
Today's revision to the mixture and derived-from rules is
voluntary, and because these revisions are less stringent than the
current regulations, State governments are not required to adopt the
regulatory changes. The UMRA generally excludes from the definition of
``Federal intergovernmental mandate'' duties that arise from
participation in a voluntary federal program. The UMRA also excludes
from the definition of ``Federal private sector mandate'' duties that
arise from participation in a voluntary federal program. Therefore we
have determined that today's rule is not subject to the requirements of
sections 202 and 205 of UMRA.

[[Page 27296]]

E. Executive Order 13132 (Federalism)

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. As explained in Section XI of
this preamble, none of today's revisions are more stringent or broaden
the scope of the existing Federal requirements. Therefore, States are
not required to adopt the revisions to the mixture and derived-from
rules in today's rules. Thus, Executive Order 13132 does not apply to
this rule. Although section 6 of Executive Order 13132 does not apply
to this rule, EPA did consult with representatives of state governments
in developing this rule, and included representatives of state
governments as participants in the rulemaking workgroup. For an
overview of EPA's consultations with the States, please see Summary of
Consultations with State Representatives for the Hazardous Waste
Identification Rule (HWIR).

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Because today's revision to the mixture and derived-from rules is less
stringent than the existing program, it would not create any mandate on
Indian tribal governments. Thus, Executive Order 13175 does not apply
to this rule.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that we have reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, we
must evaluate the environmental health or safety effects of the planned
rule on children, and explain why the planned regulation is preferable
to other potentially effective and reasonably feasible alternatives
considered by us. This rule is not subject to Executive Order 13045
because it is not an economically significant rule as defined by
Executive Order 12866 and because the environmental health or safety
risks addressed by this action do not present a disproportionate risk
to children.

H. National Technology Transfer and Advancement Act of 1995

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs us to use voluntary consensus standards in our
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (for example, materials specifications, test
methods, sampling procedures, and business practices) that are
developed or adopted by voluntary consensus standards bodies. The NTTAA
directs EPA to provide Congress, through OMB, explanations when we
decide not to use available and applicable voluntary consensus
standards. Today's rule does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.

I. Executive Order 12898: Environmental Justice

Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' as well as through EPA's April 1995, ``Environmental
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda
Report,'' and National Environmental Justice Advisory Council, EPA has
undertaken to incorporate environmental justice into its policies and
programs. EPA is committed to addressing environmental justice
concerns, and is assuming a leadership role in environmental justice
initiatives to enhance environmental quality for all residents of the
United States. The Agency's goals are to ensure that no segment of the
population, regardless of race, color, national origin, or income,
bears disproportionately high and adverse human health and
environmental effects as a result of EPA's policies, programs, and
activities. Today's rule is not expected to negatively impact any
community, and therefore is not expected to cause any
disproportionately high and adverse impacts to minority or low-income
communities versus non-minority or affluent communities.

J. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective August 14, 2001.

Technical Correction

XIII. What Technical Correction Is EPA Making in Today's
Rulemaking?

In today's final rule, we also are correcting an error made in a
previous notice. In the final rule published June 8, 2000,
``Organobromines Production Wastes; Petroleum Refining Wastes;
Identification and Listing of Hazardous Waste; Land Disposal
Restrictions; Final Rule and Correcting Amendments' (65

[[Page 27297]]

FR 36365), the entry for listed hazardous waste code U048 (o-
Chlorophenol) in Table 1 of Appendix VII to 40 CFR part 268
(``Effective Dates of Surface Disposed Wastes (Non-Soil and Debris)
Regulated in the LDRs-Comprehensive List'') was inadvertently removed.
Today we are amending Table 1 of Appendix VII to 40 CFR part 268 to
reinsert the entry for hazardous waste code U048. The LDR effective
date for this waste code (all waste categories) was August 8, 1990.

List of Subjects

40 CFR Part 261

Environmental protection, Hazardous waste, Recycling, Waste
treatment and disposal.

40 CFR Part 268

Hazardous waste, Reporting and recordkeeping requirements.

Dated: April 30, 2001.
Christine Todd Whitman,
Administrator.

For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

1. The authority citation for part 261 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.

2. Section 261.3 is amended by removing and reserving paragraph
(a)(2)(iii) and revising paragraph (a)(2)(iv) and the first sentence of
paragraph (c)(2)(i); and by adding paragraphs (g) and (h) to read as
follows:

Sec. 261.3 Definition of hazardous waste.

(a) * * *
(2) * * *
(iii) [Reserved]
(iv) It is a mixture of solid waste and one or more hazardous
wastes listed in subpart D of this part and has not been excluded from
paragraph (a)(2) of this section under 40 CFR 260.20 and 260.22,
paragraph (g) of this section, or paragraph (h) of this section;
however, the following mixtures of solid wastes and hazardous wastes
listed in subpart D of this part are not hazardous wastes (except by
application of paragraph (a)(2)(i) or (ii) of this section) if the
generator can demonstrate that the mixture consists of wastewater the
discharge of which is subject to regulation under either section 402 or
section 307(b) of the Clean Water Act (including wastewater at
facilities which have eliminated the discharge of wastewater) and;
* * * * *
(c) * * *
(2) (i) Except as otherwise provided in paragraph (c)(2)(ii), (g)
or (h) of this section, any solid waste generated from the treatment,
storage, or disposal of a hazardous waste, including any sludge, spill
residue, ash emission control dust, or leachate (but not including
precipitation run-off) is a hazardous waste. * * *
* * * * *
(g)(1) A hazardous waste that is listed in subpart D of this part
solely because it exhibits one or more characteristics of ignitability
as defined under Sec. 261.21, corrosivity as defined under Sec. 261.22,
or reactivity as defined under Sec. 261.23 is not a hazardous waste, if
the waste no longer exhibits any characteristic of hazardous waste
identified in subpart C of this part.
(2) The exclusion described in paragraph (g)(1) of this section
also pertains to:
(i) Any mixture of a solid waste and a hazardous waste listed in
subpart D of this part solely because it exhibits the characteristics
of ignitability, corrosivity, or reactivity as regulated under
paragraph (a)(2)(iv) of this section; and
(ii) Any solid waste generated from treating, storing, or disposing
of a hazardous waste listed in subpart D of this part solely because it
exhibits the characteristics of ignitability, corrosivity, or
reactivity as regulated under paragraph (c)(2)(i) of this section.
(3) Wastes excluded under this section are subject to part 268 of
this chapter (as applicable), even if they no longer exhibit a
characteristic at the point of land disposal.
(h)(1) Hazardous waste containing radioactive waste is no longer a
hazardous waste when it meets the eligibility criteria and conditions
of 40 CFR part 266, Subpart N (``eligible radioactive mixed waste'').
(2) The exemption described in paragraph (h)(1) of this section
also pertains to:
(i) Any mixture of a solid waste and an eligible radioactive mixed
waste; and
(ii) Any solid waste generated from treating, storing, or disposing
of an eligible radioactive mixed waste.
(3) Waste exempted under this section must meet the eligibility
criteria and specified conditions in 40 CFR 266.225 and 40 CFR 266.230
(for storage and treatment) and in 40 CFR 266.310 and 40 CFR 266.315
(for transportation and disposal). Waste that fails to satisfy these
eligibility criteria and conditions is regulated as hazardous waste.

PART 268--LAND DISPOSAL RESTRICTIONS

3. The authority citation for part 268 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

Appendix VII to Part 268--[Amended]

4. Appendix VII to part 268 Table 1 is amended by adding the
following wastestream in alphanumeric order (by the first column) to
read as follows:

----------------------------------------------------------------------------------------------------------------
Waste code Waste category Effective date
----------------------------------------------------------------------------------------------------------------

* * * * * * *
U048..................................... All.............................. Aug. 8, 1990.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 01-11411 Filed 5-15-01; 8:45 am]
BILLING CODE 6560-50-

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Hazardous Waste Identification Rule (HWIR): Revisions to the Mixture and Derived-From Rules

Local Navigation